Report to
Congress on the Use of Administrative Subpoena
Authorities by Executive Branch Agencies and Entities,
Pursuant to P.L. 106-544, Section 7

I. EXECUTIVE SUMMARY

Section 7(a)
of the Presidential Threat Protection Act of 2000 (Presidential Threat
Protection Act), enacted on December 19, 2000, requires the Attorney General,
in consultation with the Secretary of the Treasury, to conduct “a study on the
use of administrative subpoena power by executive branch agencies or entities”
and report the findings of that study “to the Committees on the Judiciary of the
Senate and the House of Representatives.”1 Section 7(b) of the Presidential Threat
Protection Act requires the Attorney General and the Secretary of the Treasury
to present data regarding the frequency of issuance of administrative subpoenas
authorized by 18 U.S.C. §3486.

A. Summary of Report on Administrative
Subpoena Authorities Held by Agencies under Authorities Other Than 18 U.S.C.
§3486

As directed in
section 7(a) of the Presidential Threat Protection Act, Section II of this
report contains: “(1) a description of the sources of administrative subpoena
power and scope of such subpoena power within executive agencies; (2) a
description of applicable subpoena enforcement mechanisms; (3) a description of
any notification provisions and any other provisions relating to safeguarding
privacy interests; (4) a description of the standards governing the issuance of
administrative subpoenas.” Section IVpresents the Attorney General’s
recommendations regarding “necessary steps to ensure that administrative
subpoena power is used and enforced consistently and fairly by executive branch
agencies.” 5 U.S.C. §551 note, Pub.L. 106-544, § 7(a), Dec. 19, 2000, 114
Stat. 2719.

Definitions and Methodologies. For purposes of this report, “administrative
subpoena” authority has been defined to include all powers, regardless of name,
that Congress has granted to federal agencies to make an administrative or
civil investigatory demand compelling document production or testimony. Civil
compulsory process authorities with provision for judicial enforcement are
included. Grand jury subpoenas, administrative law judge subpoenas, and
investigative authorities requiring
judicial approval are not within the scope of the report. Appendices A, B, and C of this report contain
the full responses submitted by executive branch entities, as supplemented by
legal research.

Findings. Congress grants the subpoena power held by
executive branch entities, and the scope and exercise of these authorities are
bound by statute. As the single most
significant source of administrative subpoena power is granted by the Inspector
General Act of 1978, the Inspector General subpoena authority is discussed in a
separate, detailed Subsection II.B. The study reveals a complex proliferation
of widely varying subpoena powers authorized by Congress. Submissions from
executive branch entities and legal research identified approximately 335
existing administrative subpoena authorities held by various executive branch
entities under current law.

Some of these
subpoena authorities lack clear enforcement mechanisms. All federal executive branch administrative
subpoenas are enforced by the courts.
Statutes granting administrative subpoena authorities, however, generally
fall into three enforcement-type categories: (1) statutes authorizing an agency
official to apply directly to an appropriate U.S. district court for
enforcement assistance, (2) statutes requiring an agency official to request
the Attorney General’s aid in applying to a U.S. district court for enforcement
assistance, and (3) statutes containing no identified enforcement mechanism.

Appendices A,
B, and C of this report contain an individualized description of particular
administrative subpoena authorities held by the various agencies. The appendices contain information related
to: (1) sources of administrative subpoena authority and scope of such subpoena
authority, (2) applicable subpoena enforcement mechanisms, (3) notification
provisions and other provisions related to safeguarding privacy interests, and
(4) standards governing issuance of administrative subpoenas. The report itself also briefly discusses each
of these four topics. The information provided in the appendices is derived
from submissions from individual agencies in response to a survey issued by the
Office of Legal Policy of the Department of Justice as well as some independent
legal research. Appendix A contains
information related to authorities held by federal governmental entities other
than the Departments of Justice or Treasury.
Appendix B contains information related to authorities held by the
Department of Justice. Appendix C
contains information related to authorities held by the Department of Treasury.
As most entries in the Appendices were submitted by individual agencies,
commissions, and other governmental entities, they do not necessarily reflect
the view or recommendation of the Attorney General or Secretary of the
Treasury.

Recommendations. The
Department of Justice notes that despite inconsistencies in the formulation of
the many authorizing statutes, judicial involvement in enforcement ensures a
good degree of fairness–especially where enforcement actions must be initiated
and coordinated by the Department of Justice. As administrative subpoena
authorities are created by separate statutes, which differ in their purpose and
content, and no consistent patterns emerge from a study of these authorities,
making any recommendations generally applicable to these various authorities
would be neither prudent nor practical.
As various agencies referred to suggestions regarding authority-specific
changes, the Department of Justice looks forward to working with Congress and
other agencies in the future to evaluate these potential changes.

Section 7(b) of the Presidential Threat
Protection Act requires the Attorney General and the Secretary of the Treasury
to “report in January of each year to the Committee on the Judiciary of the
Senate and the House of Representatives on the number of administrative
subpoenas issued by them under [18 U.S.C. §3486] and the identity of the agency
or component of the Department of Justice or the Department of Treasury issuing
the subpoena and imposing the charges.”

U.S.C. §551 note,
Pub.L. 106-544, § 7, 114 Stat. 2719 (2000). The reporting requirement of section 7(b)
terminates in December of 2003, “3 years
after the date of the enactment,” which occurred on December 19, 2000. Pub.L. 106-544, §7(b)(2), 114 Stat. 2719
(2000). Section III of this report
contains a description of the authorities provided under 18 U.S.C. §3486(a), as
well as data regarding the frequency of use during Calendar Year 2001. Frequency data for subpoenas issued under 18
U.S.C. §3486 is also included in tabular form in Table 1 infra.

II. ADMINISTRATIVE SUBPOENA AUTHORITI ES HELD BY AGENCIES UNDER AUTHORITIES OTHER THAN 18
U.S.C. §348

A. General Subpoena Authorities Held by the
Various Agencies

1. Description of the Sources of
Administrative Subpoena Power and the Scope of Such Subpoena Authority.

As
administrative agencies are established through statute, a statute must also
authorize their issuance of administrative subpoenas.2 Administrative subpoena authorities allow executive branch agencies to issue a
compulsory request for documents or testimony without prior approval from a
grand jury, court, or other judicial entity.
Without sufficient investigatory powers, including some authority to
issue administrative subpoena requests, federal governmental entities would be
unable to fulfill their statutorily imposed responsibility to implement
regulatory or fiscal policies.3 Congress has granted some form of
administrative subpoena authority to most federal agencies, with many agencies
holding several such authorities. The
authority most commonly used, the authority provided to all Inspectors General,
is discussed in detail in Subsection II.B infra. While the Inspector General authority is
mainly used in criminal investigations, specific administrative subpoena
authorities may be exercised in civil or criminal investigations. While federal
authorizing statutes generally grant subpoena authorities directly to a
particular agency head, a few statutory authorities authorize the President to
exercise a subpoena authority, and the President has generally delegated that
authority to a specific agency head through Executive Order.4 Most administrative subpoena authorities have
been redelegated by the entity head to subordinate officials within the entity.
Some statutes granting administrative subpoena authorities, however, limit or
forbid delegation of the authority to lower-ranking officials within the
agency.5 In some instances, the decision to issue a
subpoena is made unilaterally by an agency official;6 in other
instances, the issuance of a subpoena requires the vote, approval, or
resolution of multiple individuals.7

The Supreme
Court has construed administrative subpoena authorities broadly8 and has
consistently allowed expansion of the scope of administrative investigative
authorities, including subpoena authorities, in recognition of the principle
that overbearing limitation of these authorities would leave administrative
entities unable to execute their respective statutory responsibilities.9 While
an agency’s exercise of administrative subpoena authority is not subject to
prior judicial approval, a subpoena issuance is subject to judicial review upon
a recipient’s motion to modify or quash the subpoena or upon an agency’s
initiation of a judicial enforcement action.

Federal courts subject the exercise of
administrative subpoena authority to a reasonableness analysis, not the more
stringent Fourth Amendment “probable cause” analysis applied in situations
involving search and seizure and issuance of a warrant. In United States v. Powell,10 the Court
articulated the deferential standard for judicial review of administrative
enforcement actions in a four-factor evaluation of “good faith” issuance,
requiring that: (1) the investigation is conducted pursuant to a legitimate
purpose, (2) the information requested under the subpoena is relevant to that
purpose, (3) the agency does not already have the information it is seeking
with the subpoena, and (4) the agency has followed the necessary administrative
steps in issuing the subpoena.11 The federal courts have construed the Powell factors broadly, allowing greater flexibility for government action.

While federal
agencies are dependent upon the courts to enforce administrative subpoena
requests, U.S. district courts must enforce an agency’s subpoena authority
unless the evidence sought by the subpoena is “plainly incompetent or
irrelevant to any lawful purpose of the [requesting official] in the discharge”
of his or her statutory duties.12 The Supreme Court noted in Oklahoma Press
Publishing Company v. Walling13 that “[t]he
very purpose of the subpoena . . . is to discover and procure evidence, not to
prove a pending charge or complaint, but upon which to make one if . . . the
facts thus discovered should justify doing so.”14 In other
words, a federal court may not condition enforcement of an agency’s subpoena
upon a showing of probable cause because the agency may be using the very
subpoena at question to make an initial determination as to whether such
probable cause does, in fact, exist. The
Supreme Court has stated in United States v. Morton Salt15 that, in
evaluating the appropriateness of an administrative subpoena request, a court
must simply determine that “the inquiry is within the authority of the agency,
the demand is not too indefinite and the information sought is reasonably
relevant.”16 The
courts are generally deferential to the agency’s determination that the
information sought is “reasonably relevant,”
noting that a court must “defer to the agency’s appraisal of relevancy in
connection with an investigative subpoena as long as it is not ‘obviously
wrong.’”17

The Supreme
Court has declined to establish universally applicable standards of
reasonableness for evaluating the scope of administrative subpoena issuance,
leaving room for lower courts to tailor their analysis to the unique
circumstances of a particular investigation. The Court has provided some
guidance, however, stating that lower courts should require at minimum that an
agency’s “specification of the documents to be produced [is] adequate, but not
excessive, for the purposes of the relevant inquiry” and that the agency
use “particularity in ‘describing the
place to be searched, and the persons or things to be seized.’”18

In addition to
challenges based on the Fourth Amendment, the Supreme Court has recognized
several potential grounds for challenge or modification of an administrative
subpoena authority in certain instances.
These grounds include, but are not limited to, the: (1) privilege
against self incrimination, (2) free exercise of religion, (3) freedom of
association, (4) attorney-client privilege.19

2. Description of Applicable Subpoena
Enforcement Mechanisms.

Congress has
consistently required that agencies and departments seek enforcement of
administrative subpoenas through a federal district court. Federal courts have generally recognized that
“[b]ifurcation of the power, on the one hand of the agency to issue subpoenas
and on the other hand of the courts to enforce them, is an inherent protection
against abuse of subpoena power.”20

Statutes
granting administrative subpoena authorities generally fall into three
enforcement-related categories: (1) statutes authorizing an agency official to
apply directly to an appropriate U.S. district court for enforcement
assistance,21 (2) statutes requiring an agency official to
request the Attorney General’s aid in applying to a U.S. district court for
enforcement assistance,22 and (3) statutes containing no stated enforcement
mechanism.23 Where an agency requests the
assistance of the Attorney General through a United States Attorney’s office to
seek enforcement of an administrative subpoena in federal district court, the
United States Attorney’s office plays a role that is more than ministerial,
exercising discretion in determining whether to seek enforcement by a
court. In evaluating such requests, the
United States Attorney’s office evaluates the subpoena issued by the agency to
determine whether the scope of the request is in keeping with the agency’s
statutory authority and the agency has followed proper procedures in issuing
the subpoena.24 In short, the United States Attorney’s
office evaluates the subpoena request to determine whether the requirements of Powell and Oklahoma Press (good faith and reasonableness) have been satisfied.

When a federal
court acts in regard to an agency’s enforcement petition, whether presented by
the agency directly or through a United States Attorney, “the district court's
role is not that of a mere rubber stamp, but of an independent reviewing
authority called upon to insure the integrity of the proceeding.”25 Federal
courts have noted that “[t]he system of judicial enforcement is designed to
provide a meaningful day in court for one resisting an administrative subpoena,"26 and that “the
court has the power to condition enforcement upon observance of safeguards to
the respondent's valid interests.”27 The burden of
proof imposed on a challenger to an administrative subpoena is steep,
however. A challenge based on an
agency’s failure to satisfy one of the four factors establishing “good faith”
under Powell,”28 for instance, will only be successful upon a
showing of “institutionalized bad faith,” not mere bad faith on the part of a
particular individual issuing the subpoena.29 A district court’s
order requiring compliance with an administrative subpoena or refusing to quash
a subpoena request is immediately appealable, however, as such an order is
generally treated as a final judgment under 28 U.S.C. §1291.30

Most statutes
authorizing administrative subpoena enforcement in federal district court
authorize the court to impose contempt sanctions upon a recipient who continues
to refuse to comply even after a court order of compliance. Certain statutes authorizing enforcement by a
federal district court also provide for specific penalty ranges or limitations
for findings of criminal or civil contempt of court based on noncompliance with
a court order to comply with an administrative subpoena request. In some
instances, these penalties are particularly stringent.31 Statutes
prescribing specific penalties for noncompliance with an administrative
subpoena and subsequent court order occasionally provide more severe penalties
for “willful contempt,” as compared to mere “contempt.”32Other
statutes authorizing district court enforcement action, either at the request of the agency itself or
through petition of the Attorney General, contain no specific contempt penalty
provisions.33 Under
such statutes, the U.S. district courts are free to apply penalties for civil
and criminal contempt otherwise available at law where a party refuses to
comply with a court’s order that the party submit to an agency’s subpoena
request.34 In
still other instances, it is unclear
whether a particular statutory subpoena authority is accompanied by a
particular statutory penalty or penalty limitation to be imposed for contempt
based on failure to comply with a court’s order for compliance. The Department of Interior, for instance,
holds a specific subpoena authority under Section 1724 of the Royalty
Simplification and Fairness Act (RSFA) but has not yet had occasion to litigate
the question as to whether a civil penalty prescribed for a violation of the
Federal Oil and Gas Management Act (FOGRMA), a statute amended by the
RSFA, is also applicable as a penalty
for contempt of court in failing to comply with the court’s order to submit to
an RFSA subpoena.35

Proceedings in
U.S. district court brought to compel compliance with an administrative
subpoena are summary proceedings. In
general, the agency issuing a subpoena requests the court’s assistance in
enforcing the agency’s previous subpoena order, or requests the Attorney General’s intervention in petitioning the
appropriate district court for enforcement assistance.36 The
district court generally issues an order to the subpoena recipient to show
cause for nonenforcement of the subpoena. If the recipient does not present
sufficient reason that the subpoena should not be enforced, including a showing
of noncompliance with the Powell “good faith” factors, “abuse of the court’s process,” or the
“unreasonableness” of the agency’s request, the court will issue an order of
compliance. While a subpoena recipient
may be entitled to some opportunity for discovery and an evidentiary hearing
prior to judicial enforcement of an administrative subpoena, this entitlement
is not absolute37 and is dependent upon the recipient’s
presentation of a certain “threshold showing” of facts supporting the need for
such hearing.38 The level of this threshold showing varies
among the federal courts.39 Should a hearing be provided, the subpoena
recipient may present a successful challenge by showing by a preponderance of
the evidence that the administrative agency did not act in “good faith” in
issuing the subpoena, was otherwise unreasonable in its subpoena request, or
“abused the processes of the court” in seeking enforcement.40

While the
federal courts have generally been somewhat deferential to federal agencies in
enforcing administrative subpoenas, case law notes that the courts do not
merely “rubber stamp” an agency’s use of subpoena authority.41 Several courts have noted that "[t]he
system of judicial enforcement is designed to provide a meaningful day in court
for one resisting an administrative subpoena,"42 and that
“[i]n the discharge of that duty, the court has the power to condition
enforcement upon observance of safeguards to the respondent's valid interests.43 As the Supreme Court noted in 1946 in Oklahoma
Press Publishing Company v. Walling, however, the responsibility of the
federal courts in administrative subpoena enforcement proceedings is to remain
“fully alive to the dual necessity of safeguarding adequately the public and
the private interest” involved in such situations.44 Therefore, the lower federal courts have been
instructed to balance the public’s interest in law enforcement, order, and
basic fairness with the personal or corporate
interest in absolute privacy.45

As federal
agencies are not currently authorized under statute to enforce administrative
subpoena compliance directly, certain agencies have recognized that they are
capable of taking action separate and apart from a U.S. district court’s
enforcement action in an indirect effort to encourage compliance. The Federal Maritime Commission, for
instance, states that, in addition to requesting the Attorney General’s
assistance in seeking judicial enforcement, the Commission may: (1) suspend a
common carrier’s tariff or use of a tariff for failure to supply information,
46 App. U.S.C. §1712(b)(2), (2) impose a
penalty of up to $50,000 per shipment for carriers subsequently operating under
a suspended tariff, 46 App. U.S.C. §1712(b)(3), and (3) request that the
Secretary of the Treasury refuse clearance to carriers in noncompliance with a
subpoena request, 46 App. U.S.C. §1712(b)(4).
Shipping Act of 1984, 46 U.S.C. §13(b)(2)-(4).46

3. Description of Any Notification Provisions
and Any Other Provisions Relating to Safeguarding Privacy Interests.

The privacy
interests of administrative subpoena recipients are protected to some degree by
the maintenance of enforcement authority in the judiciary and the statutory
ability of recipients to motion a court to quash or modify a subpoena request.47See discussion of
judicial review in enforcement proceedings in subsection II.A.3.a infra and section
II.A.2 supra. In addition,
agencies and departments are limited in exercising their administrative
subpoena authorities by (1) nondisclosure requirements imposed in an agency’s
organic statutes, (2) privacy-protective constraints internal to the statute
authorizing the subpoena power, (3) generally applicable privacy-protective
statutes, and (4) agency-promulgated guidelines limiting or directing subpoena
issuance. See discussion of
various statutory/regulatory privacy-protective provisions in subsection
II.A.3.b infra. Subsection
II.A.3.c infra discusses
privacy-protective guidelines and directives established internally in agencies
holding administrative subpoena authorities.

While the
privacy interests of an individual or entity are protected by maintaining
administrative subpoena enforcement authority in the federal courts, the courts
have consistently held that the issuance of an administrative subpoena without
a showing of probable cause does not violate the Fourth Amendment.48 The federal courts have recognized that a
showing of probable cause is unnecessary in issuing and
enforcing an administrative subpoena as the exercise of such authority is
significantly less intrusive than a search and seizure carried out under a
warrant.49 After
all, statutes authorizing administrative subpoenas are generally enforceable
through judicial process,50 and the
subject of the subpoena is not subject to the possible physical invasion that a
search and seizure may impose. In
addition, as the Supreme Court has recognized, the issuance of an
administrative subpoena may not be subjected to a probable cause requirement as
the administrative subpoena is often issued for the very purpose of determining
whether such probable cause exists.51

In place of a
probable cause requirement, the federal courts in enforcement proceedings have
imposed basic requirements as to the scope, necessity, and authority to issue
an administrative subpoena in addition to evaluating the reasonableness of an
administrative subpoena request. A
recipient of an administrative subpoena may challenge the issuance or
enforcement of an administrative subpoena in court by presenting sufficient
evidence that the agency has not acted in accordance with the basic standards
of reasonableness as articulated in Oklahoma Press Publishing Co. v. Walling,52 has not issued
an administrative subpoena in “good faith” demonstrated by a failure to satisfy
factors articulated in United States v. Powell,53 or has abused
the judicial process in petitioning a court for enforcement.54 While a judicial challenge on these grounds
is only available to the subpoena recipient either (1) through a petition to
quash a subpoena or (2) in the course of challenging an administrative subpoena
enforcement order, an agency must consider the strictures of each of these
possible grounds for nonenforcement before issuing an administrative
subpoena. While the courts are
deferential in evaluating an agency’s issuance of an administrative subpoena, a
court does not merely “rubber stamp” an agency’s exercise of issuance
authority.

In Oklahoma
Press Publishing Co. v. Walling, 327 U.S. 186 (1946), the Supreme Court
discussed the necessity of balancing the importance of the public interest in
the information being requested with the importance of the interest in personal
or organizational privacy. See 327 U.S. 186, 202 (1946). The Court
noted in Oklahoma Press that a court should evaluate a challenge to an administrative subpoena by considering
whether: (1) the investigation is for a lawfully authorized purpose, (2) the
subpoena authority at issue is within the power of Congress to command, and (3)
the “documents sought are relevant to the inquiry.”55 The Court
also noted that an administrative subpoena request must be “reasonable” in
nature. The Court declined to strictly
define the applicable reasonableness inquiry, however, stating that the inquiry
in such situations cannot be “reduced to formula; for relevancy, adequacy or
excess in the breadth of subpoena are matters variable in relation to the
nature, purposes, and scope of the inquiry.” 56 The
Court noted that reasonableness requires, in summary, “specification of the
documents to be produced adequate, but not excessive, for the purposes of the
relevant inquiry,” including “particularity in ‘describing the place to be
searched, and the persons or things to be seized.’”57

The organic
statutes of certain agencies contain internal provisions restricting the
disclosure of particular information regularly accessed by the agency. The Federal Trade Commission Act, for
instance, contains strict nondisclosure requirements, protecting confidential
financial or commercial information.58 A full
description of the privacy-related provisions contained in the organic statutes
of the federal agencies is beyond the scope of this report.

Certain of the
statutes authorizing exercise of administrative subpoena authority contain
internal privacy limitations.59 Other
authorizing statutes contain internal notification requirements.60 Many
of these internal statutory constraints are referenced in the attached Appendices. A
full description of each of these internal statutory constraints is beyond the
scope of this report.

(iii)
Generally applicable privacy or notice statutes.

Many
privacy-protective statutory schemes have been enacted to protect specific
categories of information, personal or organizational. These statutes are applicable, in certain
circumstances, to information collected in response to administrative subpoena
authorities. Subsections II.A.3.b.(aa) through II.A.3.b.(ll) infra provide a
brief description of several of these privacy-protective provisions and their
potential relation to administrative subpoena requests.

(aa) Privacy
Act, 5 U.S.C. §552a.

The Privacy
Act regulates to some degree the sharing of information among federal agencies
and the disclosure of information to third parties. See 5 U.S.C. § 552a. The Act was
intended, among other things, to safeguard an individual’s privacy by
preventing the misuse of federal records.

Subject to
some exceptions, including an exception for records released as part of an
authorized civil or criminal law enforcement investigation, federal agencies
are required to obtain an individual’s consent before releasing protected
records to another federal agency or other third party.61 5 U.S.C. §552a(b). Records protected by the
Act include, but are not limited to, those containing specific reference to an
individual’s “education, financial transactions, medical history, and criminal
or employment history” and that contain the individual’s “name, or the
identifying number, symbol, or other identifying particular assigned to the
individual, such as a finger or voice print or a photograph.” 5 U.S.C.
§552a(a)(4).

Agencies may
share information protected by the Act if they do so through a “routine use,”
an information sharing relationship disclosed through advance notice in the
Federal Register and to Congress and the Office of Management and Budget
(OMB). By requiring the agencies to
provide Congress and OMB with advance notice of such information sharing,
Congress and OMB are able to evaluate “the probable or potential effect of such
proposal[s] on the privacy or other rights of individuals.” 5 U.S.C. section
552a(r).

(bb) Freedom of Information Act, 5 U.S.C. §552.

The Freedom of
Information Act (FOIA) generally requires the disclosure of certain
government information to the public at
the request of an individual or entity.
FOIA, however, contains a number of exceptions, allowing governmental
entities to withhold information obtained in response to an administrative
subpoena under certain circumstances.
Particular types of information exempted from FOIA’s general disclosure
requirements include, but are not limited to: (1) “trade secrets and commercial
or financial information obtained from a person and privileged or
confidential,” (2) “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal
privacy;” and, (3) to a certain extent, “records or information compiled for
law enforcement purposes.”62 In addition, agency regulations sometimes
contain provisions allowing parties to petition for confidential treatment of
information provided at the request of an agency in carrying out its statutory
responsibilities.63

The
legislative history of the Right to Financial Privacy Act (RFPA) denotes that
it was intended to balance the privacy interests of customers of financial
institutions with the public’s interest in effective and legitimate law
enforcement investigations.64 12 U.S.C.
§3402. RFPA limits both the access/disclosure and the interagency transfer of a
customer’s personal financial information.

RFPA prohibits
any agency or department from obtaining (or any private "financial
institution" as defined in 12 U.S.C. § 3401(1) from disclosing) the
financial records of a financial institution's "customer" as defined
in 12 U.S.C. § 3401(5) without prior customer consent, except where access is
authorized by one of the express exceptions to the Act or is accomplished
through one of the five access mechanisms mandated by the Act, including
“administrative subpoena or summons.” See 12 U.S.C. § 3412 (regarding restrictions on interagency transfer of protected
information). Under 12 U.S.C. §3405, a government authority may obtain
financial records protected by RFPA pursuant to an administrative subpoena only
if: (1) there is reason to believe that the records sought are relevant to a legitimate
law enforcement inquiry and (2) a copy of the subpoena or summons has been
served upon the customer or mailed to his last known address on or before the
date on which the subpoena or summons was served on the financial institution
together with a notice stating with reasonable specificity the nature of the
law enforcement inquiry. See 12
U.S.C. §3405. The statute provides
specific language for the agency to use in the notice it provides to the
customer.65 A financial institution is forbidden under RFPA
from releasing the financial records of a customer "until the Government
authority seeking such records certifies in writing to the financial
institution that it has complied with the applicable provisions" of the
Act, including the notice provision. 12 U.S.C. § 3403(b). Pursuant to 12 U.S.C. §3409, however, a
governmental entity may under certain enumerated circumstances seek a court
order allowing delayed notification to the customer.66

Federal
agencies may be subject to civil penalties for violation of RFPA requirements,67and
federal agents or employees are subject to disciplinary action for willful or
intentional violation of the Act,68 thus
providing incentive to protect the privacy of consumer financial records
requested by an agency under its subpoena authority.69

The customer
receiving notice of an administrative subpoena request has ten days after the
receipt of that notice, or fourteen days after the notice was mailed to the
consumer, to provide consent or to challenge the government access to their
records in U.S. district court. 12 U.S.C. §3410(a). In bringing an RFPRA challenge to a
subpoena, however, the customer bears the initial burden of proof.70 In order for
a customer to challenge a subpoena, he or she may make a procedural argument
that the proper notice was not provided as required by the act or a substantive
argument that either the information sought by the agency was not “reasonably
described”71 or the agency did not have “reason to
believe that the records sought are relevant to a legitimate law enforcement
inquiry.”72 Lower federal courts have generally accorded
agencies wide latitude in imposing administrative subpoenas, however, and the
two bases for substantive challenge under RFPA rarely prove fruitful for
challengers in court.73
Administrative subpoenas issued in relation to inquiries not related to
law enforcement inquiries are subject to the general requirement of RFPRA that
customer consent must be gained prior to receipt/disclosure of the subpoenaed
information protected by the Act.

(dd) Trade
Secrets Act, 18 U.S.C. §1905

While 18
U.S.C. §1905, a provision of the Trade Secrets Act, does not place restrictions
on information requests, it is intended to prevent a federal employee from
publicly divulging particular information derived from “examination or
investigation.” The provision states in
full that:

Whoever, being an officer or employee of the
United States or of any department or agency thereof, any person acting on
behalf of the Office of Federal Housing Enterprise Oversight, or agent of the
Department of Justice as defined in the Antitrust Civil Process Act (15 U.S.C.
1311-1314), publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any
information coming to him in the course of his employment or official duties or
by reason of any examination or investigation made by, or return, report or
record made to or filed with, such department or agency or officer or employee
thereof, which information concerns or relates to the trade secrets, processes,
operations, style of work, or apparatus, or to the identity, confidential
statistical data, amount or source of any income, profits, losses, or
expenditures of any person, firm, partnership, corporation, or association; or
permits any income return or copy thereof or any book containing any abstract
or particulars thereof to be seen or examined by any person except as provided
by law; shall be fined under this title, or imprisoned not more than one year,
or both; and shall be removed from office or employment.

Id.

The language
of the statute clearly requires federal employees to protect certain personal
and business information obtained under an issued administrative subpoena from
public disclosure, and the consequences for a statutory violation–including
fine, imprisonment, or both–are stringent. Id.

The disclosure
of medical records of substance abuse patients obtained through administrative
subpoena compliance is strictly limited by operation of 42 U.S.C. §290dd-2,
which prohibits the disclosure of such medical records unless disclosure is
specifically permitted by the statute, or by the implementing regulations,
which may be found at 42 C.F.R. Part 2.
Section 290dd-2 of Title 42 of the United States Code requires that
“records of the identity, diagnosis, prognosis, or treatment of any patient
which are maintained in connection with the performance of any program or
activity relating to substance abuse education, prevention, training,
treatment, rehabilitation, or research, which is conducted, regulated, or
directly or indirectly assisted by any department or agency of the United
States shall . . . be confidential and be disclosed only for the purposes and
under the circumstances expressly authorized” by the statute. The statute
authorizes disclosure in a limited number of circumstances. Prohibitions on disclosure under the statute
continue to apply to a patient’s records, regardless of “whether or when the
individual ceases to be a patient. 42
U.S.C. §290dd-2(d).

An agency or
department may disclose such information with the consent of the person who is
the subject of the records. 42 U.S.C.
§290dd-2(b)(1). Even with patient
consent, however, the information may only be disclosed to (1) medical
personnel to meet a “bona fide medical emergency,” (2) “qualified personnel for
the purpose of conducting scientific research, management audits, financial
audits, or program evaluation, but such personnel may not identify, directly or
indirectly, any individual patient in any report of such research, audit, or
evaluation, or otherwise disclose patient identities in any manner,” or (3) “if
authorized by an appropriate order of a court of competent jurisdiction granted
after application showing good cause therefor, including the need to avert a
substantial risk of death or serious bodily harm.”74 The information disclosed under the statute
may not be used to initiate or substantiate criminal charges against a patient
or to conduct any investigation of the patient. In criminal investigations, a
special court order must be obtained before the holder of the substance abuse
patient medical records may produce such records, even in response to
compulsory process, whether a search warrant, grand jury subpoena, or a health
care fraud administrative subpoena.

A person violating
these provisions is subject to fine under Title 18 of the United States Code. See 42 U.S.C. §290dd-2(f). The Secretary of Health and Human Services has
promulgated extensive regulations related to 42 U.S.C. §290dd-2 at 42 C.F.R.
Part 2.

Under this
regulation, no disclosure of patient health information may be made by health
care providers or other covered entities or their associates unless the patient
authorizes it, the disclosure is required by law, or the disclosure is
specifically permitted by the rule. A
disclosure is considered "required by law" when the disclosure
"complies with and is limited to the relevant requirements of such
law."76 This
broad provision is limited by the caveat in §164.512(a)(2) that "[a]
covered entity must meet the requirements described in paragraph (c), (e), or (f) of this section for uses or
disclosures required by law." The
requirements imposed in those sections relate to disclosures arising from adult
abuse and neglect or domestic violence (§164.512(c)), disclosures in judicial
or administrative proceedings (§164.512(e)), or disclosures for law enforcement
purposes (§164.512(f).

To qualify as
a disclosure for law enforcement purposes, the subject of the protected health
information must be the target or subject of the investigation and the activity
or investigation may not relate to: (a) the receipt of health care; (b)
a claim for public benefits related to health; or (c) qualification for or
receipt of public benefits or services where the subject’s health is integral
to the claim for
benefits or services.77 In
such cases, a covered entity may disclose protected health information to law
enforcement pursuant to an administrative request only when the material sought
is (1) relevant and material to a law enforcement inquiry, (2) the request is limited in scope in light
of the purpose for which it is sought, and (3) de-identified information could not be
used by law enforcement for the same purpose.78 However, law enforcement may still acquire
records from covered entities without meeting these three requirements through
the use of a court order, a subpoena issued by a judicial officer, or a grand
jury subpoena.79

The regulation
recognizes that there may be occasions when law enforcement organizations
perform health oversight activities, thereby increasing the need for access to
protected health information. Examples
of this are occasions when the Department of Justice, Federal Bureau of Investigations, or the
Department of Health and Human Services, Office of Inspector General,
investigate allegations of fraud against the Medicare program or other
government and private health care plans.80 These oversight activities, which are granted
much broader access to protected health information under the regulation,
include audits, investigations, inspections, civil, criminal, or administrative
proceedings or actions, and other activities necessary for oversight of: the nation's
health care system; government benefit programs for which health information is
relevant to beneficiary eligibility; government regulatory programs for which
health information is necessary for determining compliance with program
standards; and entities subject to civil rights laws for which health
information is necessary for determining compliance.81 In such oversight activities, the covered
entity is permitted to make a disclosure to an authorized oversight agency
without the patient's consent.

Entities
subject to the requirements of the final rule include: (1) health care
providers, (2) health plans, (3) health clearinghouses82 and (4)
business associates of these entities who assist with their performance,
including lawyers and consultants.83

The provisions of the Electronic
Communications Privacy Act (ECPA) limit the disclosure of certain
“wire or electronic communications” pertaining to a subscriber to or customers
of a “provider of electronic communication service or remote computing
service.” 18 U.S.C. §2703. The Act
limits a service provider’s ability to disclose the contents of electronic
communications that have been in electronic storage for less than 180 days or
in a remote computing service, unless sought under a valid warrant. Id.
Communications that have been in electronic storage for more than 180 days or
in a remote computing service, however, may be released to a governmental
entity when the entity seeks the communications under a valid warrant without
prior notice to the customer or subscriber or with prior notice to the customer
of subscriber by use of “an
administrative subpoena authorized by a Federal or State statute.” Id.

Section 2703
of the ECPA requires that a governmental agency give prior notice to the
service’s subscriber or customer if the agency issues a subpoena seeking
disclosure of communications covered by the Act. Section 2705 allows the agency or
governmental entity to delay notification of a subpoena to the
subscriber/customer in some circumstances for ninety days upon written
certification by a supervisory official that timely notice may have an “adverse
result.” Under the language of the statute,
such “adverse result[s]” may include: “(a) endangering the life or physical
safety of an individual, (b) flight from prosecution, (c) destruction of or
tampering with evidence, (d) intimidation of potential witnesses; or (e)
otherwise seriously jeopardizing an investigation or unduly delaying a trial.”
18 U.S.C. §2705. In addition, the ECPA
authorizes an agency to seek a court order prohibiting an electronic service
provider from notifying a user of the existence or compliance with an
administrative subpoena. A court is
required to issue such an order “for such period as the court deems
appropriate” if there is reason to believe that notification will cause any of
the five “adverse results” listed above.
18 U.S.C. §2705(b).

The Fair Credit Reporting Act generally
limits permissible disclosures of consumer reports by consumer reporting
agencies. While consumer reporting
agencies are authorized to disclose consumer reports in response to grand jury
subpoena requests or court order, consumer reporting agencies may not disclose
such reports in response to administrative subpoena requests. Consumer
reporting agencies are, however, authorized to disclose such information to the
Federal Bureau of Investigation or other governmental agencies for
counterterrorism purposes when “presented with a written certification by such
government agency that such information is necessary for the agency's conduct
or such investigation, activity or analysis.” 15 U.S.C. §1681u. A consumer reporting agency may only
“disclose the name, address, former addresses, places of employment, or former
places of employment, to the Federal Bureau of Investigation when presented
with a written request, signed by the Director or the Director's designee in a
position not lower than Deputy.” 15
U.S.C. §1681u(b). The Director, or the
Director’s designee, may only certify such a request of he or she has
“determined in writing that such information is sought for the conduct of an
authorized investigation to protect against international terrorism or
clandestine intelligence activities, provided that such an investigation of a
United States person is not conducted solely upon the basis of activities protected
by the first amendment to the Constitution of the United States.” 15 U.S.C.
§1681u(b). Consumer reporting agencies and their agents are prohibited from
disclosing to third parties any information that would alert them to the fact
that the FBI had requested such information. 15 U.S.C. §1681u(d).

(ii) Protection of Cable Subscriber Privacy, 47 U.S.C. §551.

The Cable Act
requires prior subscriber consent for any disclosure of personally identifiable
information from a cable provider except in the instance of a court order for
production of the information. Exercise
of administrative subpoena authority is not sufficient to justify the release
of certain personally-identifiable information from a cable provider, including
the “(i) extent of any viewing or other use by the subscriber of a cable
service or other service provided by the cable operator, or (ii) the nature of
any transaction made by the subscriber over the cable system of the cable
operator.” 47 U.S.C. §551(c)(2)(C)(i)-(ii).

(jj) 26 U.S.C. §6103 (tax return information).

Disclosure of
tax return information accessed through administrative subpoenas is limited by
26 U.S.C. §6103. Section 6103(b)(2)
defines tax return information to include, among other things, a “taxpayer’s
identity, the nature, source, or amount of his income, payments, receipts,
deductions, exemptions, credits, assets, liabilities, net worth, tax liability,
tax withheld, deficiencies, overassessments, or tax payments.” Section
6103(p)(4) requires an agency receiving tax return information to establish and
maintain adequate procedures to safeguard the confidentiality of information
disclosed. Disclosing non-taxpayer information in a manner prohibited by 26
U.S.C. §6103 is currently a felony, punishable by five years imprisonment, a
fine of five thousand dollars, and dismissal from employment. 26 U.S.C. 7213.

FERPA generally prohibits the dispersal of
federal funds to student educational agencies or institutions that have a
policy or practice of permitting the release of a student’s educational records
or personally identifiable information contained therein to any individual,
agency or organization without the written consent of the student’s parents. 20 U.S.C. §1232g(b)(1). Entities responding to subpoena requests,
however, are exempt from the general prohibition. 20 U.S.C. §1232g(b)(1)(J)(ii). The agency issuing the subpoena may, upon
showing good cause, order the disclosing educational entity not to disclose the
“the existence or contents of the subpoena” or “any information furnished in
response to the subpoena” to the student or her parents. Where “good cause” is not shown, entities
disclosing information in response to a subpoena are required to give notice of
the subpoena to parents and the student prior to the compliance date. 20 U.S.C. §1232g(b)(2)(B). Government agencies accessing “records which
may be necessary in connection with the audit and evaluation of
Federally-supported education programs, or in connection with the enforcement
of the Federal legal requirements which relate to such programs” are required
to protect the information “in a manner which will not permit the personal
identification of students and their parents by other than those officials, and
such personally identifiable data shall be destroyed when no longer needed for
such audit, evaluation, and enforcement of Federal legal requirements.” 20
U.S.C. §1232g(b)(3). In addition, 20 U.S.C. §1232g(b)(2)(B) and (4)(B) require
that the information submitted in response to a subpoena request be transferred
to third parties only upon the condition that the third party will not permit
access to any other party without the consent of the parents or the student.

Federal courts
have held that FERPA does not provide a private right of action against an
entity seeking educational records, however, as the statute only authorizes the
Secretary of Education or an adminstrative head of an education agency to take
appropriate actions to enforce the provisions of FERPA.84 20 U.S.C. §1232(g)(f). In addition, at least one federal court has
held that FERPA prohibits the disclosure but not the act of accessing such
records.85

Video tape
service providers are prohibited from disclosing “personally identifiable
information,” except in certain circumstances including the issuance of a law
enforcement warrant, grand jury subpoena, or court order. 18 U.S.C. §2710(b)(2)(C). Permissible
disclosure in other circumstances, including, presumably, in response to an
administrative subpoena request, is limited to include only the names and
addresses of subscribers. Disclosure of
such names and addresses may only be provided if : “(i) the video tape service
provider has provided the consumer with the opportunity, in a clear and
conspicuous manner, to prohibit such disclosure; and (ii) the disclosure does
not identify the title, description, or subject matter of any video tapes or
other audio visual material. . . .” 18
U.S.C. §2710(b)(2)(D).

c. Intra-agency Regulations, Guidelines, and Directives

See Appendices
A, B, and C for references to intra-agency regulations, guidelines and
directives related to administrative subpoena issuance. Brief descriptions of such regulations and
guidelines are included in the appendices where provided by the agency holding
the subpoena authority.

4. Description of the Standards Governing
the Issuance of Administrative Subpoenas

In addition to
being governed by statutory issuance standards, agencies issuing administrative
subpoenas are also governed by internal agency regulations and guidelines. Most agencies holding statutory
administrative subpoena authorities have a structured system of issuance in
place, requiring pre-approval from various agency officials as to the legality
of issuance based on scope, necessity, and other considerations.86 See
Appendices A, B, and C (column entitled “standards governing the issuance of
administrative subpoena authorities”) for further description of internal
agency standards governing the issuance of administrative subpoenas under
specific authorities.

B. Administrative Subpoena Authority Held By Inspectors General
of the Various Agencies

On October 12,
1978, Congress enacted the Inspector General Act (IGA), 5 U.S.C.App. 3,
creating an Office of Inspector General (OIG) within several federal agencies.
The Inspector General Act has since been amended multiple times to create an
Office of Inspector General within most federal agencies and other entities.
The Offices of Inspector General are authorized to conduct audits and
investigations “to conduct and supervise audits and investigate relative to the
programs and operations of the establishments listed in section 11(2).”87 Inspectors
General are authorized not only to conduct investigations within their
respective agencies but also to investigate situations of potential fraud
involving recipients of federal funding. Inspectors General are intended to
function independent of the agency head.
They are appointed by the President, subject to the advice and consent
of the Senate, and removeable only by the President.88 The Inspector General Act requires that
Inspectors General be appointed "without regard to political affiliation
and solely on the basis of integrity and demonstrated ability in accounting,
auditing, financial analysis, law, management analysis, public administration,
or investigations." 89

In order to
fulfill their investigative responsibilities, Inspectors General are authorized
to exercise certain administrative subpoena authority. 5 U.S.C. app. 3 §6(a)(4).

1. Description of the Source of
Inspector General Administrative Subpoena Power and the Scope of Such Subpoena
Authority.

Federal courts
have generally stated that Inspectors General hold broad investigative
authority90 to carry out their responsibilities of
promoting efficiency and preventing fraud, waste, abuse, and mismanagement in
federal government programs. See Inspector General Act of 1978, § 1, 5
U.S.C. app. 3. Inspectors General are
authorized to exercise administrative subpoena authority to obtain information
required for administrative, civil and criminal investigation.91See 5 U.S.C.A. app. 3 § 6.92 The Inspector General Act authorizes
coordination between the Inspector General and other agencies. See 5 U.S.C. app. 3 §4(a)(4)(A), (B).
An Inspector General is required by statute to report to the Attorney General
any discovery of grounds to believe that a violation of federal law has
occurred. 5 U.S.C. app. 3 § 4(d). Inspector General administrative subpoena
authority has been upheld by federal courts even in situations where the Inspector
General is cooperating with divisions of the Justice Department exercising
criminal prosecutorial authority where there are reasonable grounds to believe
a violation of federal criminal law has occurred.93 Federal
courts have also held that an Inspector General is authorized to continue using
civil subpoena authority for civil and administrative investigative purposes
even where he or she has referred a case to the Department of Justice for
prosecution.94

The Inspector
General Act of 1978 authorizes “each Inspector General” to “require by subpoena
the production of all information, documents, reports, answers, records,
accounts, papers, and other data and documentary evidence necessary in the
performance of the functions assigned by [the Act].” 5 U.S.C. app. 3 §6(a)(4). The Inspector
General Act solely authorizes subpoena duces tecum, or documentary requests. In addition, the statute requires that “procedures
other than subpenas shall be used by the Inspector General to obtain documents
and information from Federal agencies.” 5 U.S.C. app. 3 §6(a)(4).

2. Description of Applicable Subpoena
Enforcement Mechanisms for Subpoenas under the Inspector General Act.95

Inspectors
General may seek the enforcement of a subpoena “by order of any appropriate
United States district court.” 5 U.S.C.
app. 3 §6(a)(4). Inspector General
subpoena enforcement proceedings are prosecuted by the Department of Justice,
at the request of the relevant Inspector General, as part of the Department’s
responsibility to conduct litigation in which the U.S. is interested. See 28 U.S.C. §§516-19. The Inspector General Act does not provide any specific
sanctions for failure to comply with an Inspector General’s subpoena, so
federal district courts are free to exercise discretion in applying general
contempt sanctions for noncompliance with a court order enforcing an Inspector
General subpoena. Federal courts have
enforced Inspector General administrative subpoenas where 1) the subpoena is
within the statutory authority of the agency; 2) the information sought is
reasonably relevant to the inquiry;96 and 3) the
demand is not unreasonably broad or burdensome.97 In addition,
federal courts have held that an Inspector General administrative subpoena is
unenforceable if it is issued in “bad faith”98 or if the
petition for enforcement constitutes an abuse of the court’s process.

3. Description of Any Notification
Provisions and Any Other Provisions Relating to Safeguarding Privacy Interests.

The Inspector
General Act contains no internal privacy protections directed specifically at
the subpoena authority provided in the Act.
The Inspector General Act itself, however, does forbid an Inspector
General to disclose an employee’s identity “after receipt of a complaint or
information from an employee” except in circumstances where the “Inspector
General determines such disclosure is unavoidable during the course of the
investigation.” 5 U.S.C. app. 3 §7(b).99

Inspector
General subpoena authority is also subject to the same general statutory
privacy-protective requirements applicable to other agency subpoena
authorities. These privacy-protective
statutes are listed and described supra in section II.A.3, which discusses agency
subpoena authorities other than the authority provided under the Inspector
General Act. Agency guidelines
implementing these privacy-protective statutes are generally applicable to the
Inspector General subpoena authority as well as other subpoena authorities exercised
by an agency.100
The Right to Financial Privacy Act of 1978 (RFPA), for instance,
subjects an agency to certain notification requirements when issuing a subpoena
subject to the RFPA. 12 U.S.C. §§ 3405.101 RFPA also limits an agency’s subpoena authority,
including the authority held by Inspectors General, by allowing a government
authority to access financial records only in
situations where there is reason to believe that the records sought are
relevant to a legitimate law enforcement inquiry.102 Individual
agencies have promulgated Inspector General policies specifically to comply
with the requirements of the RFPA103 and other
privacy-protective statutes.

4. Description
of the Standards Governing the Issuance of Administrative Subpoenas.

Federal courts
have held that the enforceability of an Inspector General administrative
subpoena authority is subject to many of the limitations imposed on other
administrative subpoena authorities, including the requirements that such a
subpoena: (1) be issued for a lawful purpose within the statutory authority of
the Inspector General Act, (2) be reasonably relevant to that purpose, and (3) not be
unduly burdensome.104 Inspectors General must carefully
comply with these requirements in order to ensure that a subpoena will be
enforceable by a federal district court. In addition to these generally
applicable requirements, the Offices of Inspector General in specific agencies
have established and published specific intra-agency policies governing
requests for and issuance of Inspector General administrative subpoenas.105

Administrative
subpoenas have proved an effective resource in the investigation and
prosecution of federal health care offenses.
In enacting HIPAA in 1996, Congress targeted health care fraud as a
major factor in the exploding cost of federal health care programs, and created
a carefully balanced array of new criminal statutes, administrative
sanctions, investigative tools and a
fraud and abuse control program to be jointly promulgated by the Secretary of
HHS and the Attorney General. The
administrative subpoena authority for the Attorney General as enacted in 18
U.S.C. §3486 was a key element to this coordinated approach. Health care fraud administrative subpoenas
facilitate a more efficient and expeditious coordinated approach to the
investigation of federal criminal health care fraud offenses. First, unlike grand jury subpoenas, the
evidence produced in a criminal investigation in response to such a subpoena
can be shared with attorneys in the Civil Division of the Department of
Justice. This enables the government to
pursue parallel criminal and civil relief simultaneously and to resolve these
matters in a coordinated and timely fashion.
The early global resolution of all pending civil and criminal exposure
is considered of great importance by many targets of health care fraud
investigations who find a benefit in a relatively swift resolution which
permits them to put the episode behind them and begin with a fresh start. Also, the sharing of information allowed with
the use of administrative subpoenas eliminates the need of the government to
otherwise serve two sets of subpoenas, one criminal and one civil, in each
health care fraud investigation, and similarly avoids cost and expense which
would otherwise be imposed if two sets of the same documents had to be
produced. Finally, the civil
investigation does not have to be suspended pending resolution of the criminal
case when information can be shared as the investigation proceeds.

1. Source and
Scope of Subpoena Authority under 18 U.S.C. §3486(a).

As Congress
estimated in 1997 that the costs of fraud and abuse in healthcare amounted to
“as much as 10 percent of total health care costs,” the legislative history of
the Health Insurance Portability and Accountability Act of 1996 (HIPAA)
suggests that Congress granted subpoena authority to the Attorney General in
investigations of healthcare fraud and abuse in order to facilitate enforcement
of federal statutes and thereby to improve the “availability and affordability
of health insurance in the United States.” See H.R.Rep. No. 104-496, at
1, 66-67, reprinted in 1996 U.S.C.C.A.N.
at 1869. Section 248 of HIPAA authorizes the Attorney General to issue
subpoenas requesting production of certain documents and testimony in
investigations relating to “any act or activity involving a federal health care
offense.” See 18 U.S.C.
§3486(a)(1)(A)(i)(I). Specifically, the
Attorney General is authorized to compel production of: (1) “any records or
other things relevant to the investigation and (2) testimony by the custodian
of the things required to be produced concerning the production and
authenticity of those things.” 18 U.S.C. §3486(a)(1)(B)(i)-(ii).

In evaluating
the scope of an administrative subpoena issued under 18 U.S.C.
§3486(a)(1)(A)(i)(I), the federal courts apply the principle formulated by the
Supreme Court in Oklahoma Press, generally applicable to executive
branch administrative subpoenas, that an administrative subpoena must be
“reasonably relevant” to an agency’s investigation at issue.106 The
permissible scope of an administrative subpoena is, however, "variable in
relation to the nature, purposes and scope of the inquiry."107 In order to
satisfy the general reasonableness standard, the agency issuing the subpoena,
in this instance the Attorney General, must satisfy the court, in accordance
with the Powell108 factors,
that: (1) “the investigation will be conducted pursuant to a legitimate
purpose,” (2) “the inquiry may be relevant to the purpose,” (3) “that the
information sought is not already within the [agency’s] possession,” and (4)
“the administrative steps required by the Code have been followed[.]"109 As noted in
section II.A.2 supra, however, the
courts have varied in their application of the last two factors, with some
courts suggesting that the Supreme Court has obviated the requirement of
considering these latter factors in decisions subsequent to Powell.110

2. Applicable Subpoena Enforcement Mechanisms

In cases of refusal to comply with a subpoena,
the Attorney General is authorized to seek the aid of a United States district
court where the investigation is occurring or where the subpoenaed person
resides. 18 U.S.C. §3486(c). Failure to obey a federal court’s order to
comply with a subpoena issued by the Attorney General under 18 U.S.C. §3486(a)
may be punished as contempt of court. 18
U.S.C. §3486(c). A district court’s
order requiring compliance with an administrative subpoena is generally treated
as a final judgment under 28 U.S.C. §1291, and, therefore, is immediately
appealable.111

Subpoenas
issued under §3486 in the course of investigations of Federal health care
offenses are subject to all other limitations placed on the production of
evidence pursuant to compulsory process.
See Section II.A.3 supra for a
description of privacy-protective statutes applicable to administrative subpoena
authorities in appropriate circumstances.

In addition to
extrinsic statutory limitations, 18 U.S.C. §3486 contains several internal,
privacy-protective limitations. At any
time before the return date specified for subpoenaed information, for instance,
the person or entity subpoenaed may petition for an order modifying or quashing
the summons or modifying any court nondisclosure order acquired by the
government. See 18 U.S.C. §3486(a)(5). Federal courts have determined
that the authority granted under 18 U.S.C. §3486(a) is “reasonable” and
therefore sufficiently protective of Fourth Amendment interests, as the statute
requires that: (1) subpoenaed items must be “described” in the subpoena, (2)
the recipient of a subpoena is ensured “a reasonable period of time within
which to comply, and (3) the subpoena “may not require production more than 500
miles from the place of service.”112See 18 U.S.C. §
3486(a)(2), (3).

While section
3486 contains no requirement that patients be notified of impending subpoena of
their health records, the subsequent use and disclosure of information gathered
through compliance with such a subpoena is limited under the statute. Section 3486, for instance, protects
information obtained under an administrative subpoena from disclosure “to any
person for use in, any administrative, civil or criminal action or
investigation directed against the individual who is the subject of the
information unless the action or investigation arises out of and is directly
related to receipt of health care or payment for health care or action
involving a fraudulent claim related to health.” 18 U.S.C. §3486(e)(1). This
prohibition on disclosure may only be overcome through a court order issued
after the court has determined that “good cause” has been shown by the party
seeking the disclosure. 18 U.S.C.
§3486(e)(1). In determining whether “good cause” exists, the court must “weigh
the public interest and the need for disclosure against the injury to the
patient, to the physician-patient relationship, and to the treatment
services.” 18 U.S.C. §3486(e)(2).

While the
statute does not generally prohibit a governmental entity from notifying a
person or entity of the disclosure of records under section 3486, a district
court in which the subpoena is or will be served may issue an ex parte order
prohibiting a person or entity from disclosing to any other person or entity
(except in the course of obtaining legal advice from an attorney) the existence
of a subpoena served under this section for ninety days. Such an order may only be issued upon a
finding by the court that disclosure may result in: a) endangerment to the life or physical
safety of any person, b) flight to avoid prosecution, c) destruction of or
tampering with evidence, or d) intimidation of potential witnesses. See 18 U.S.C. §3486(a)(6)(A)-(B). This ex parte order of nondisclosure may be
extended for additional periods of up to ninety days only upon a showing that
the conditions recounted above still exist. See 18 U.S.C. §3486(a)(6)(C).
If no case or proceeding arises from the production of the records or
other things, pursuant to a §3486 subpoena, within a reasonable time, the
person producing the records or things to the agency may make a written demand
that the agency return the records to that person, except where the materials
provided were only copies, not originals. See 18 U.S.C. §3486(a)(8).

In addition, the privacy interests of the recipient of a §3486
subpoena, as with the privacy interests of recipients of all other currently
authorized administrative subpoenas, are protected in that enforcement of the subpoena may only be
accomplished by a federal court, thus removing final action from the issuer of
the subpoena and providing an independent safeguard. In evaluating subpoenas issued under 18
U.S.C. §3486, federal courts have evaluated Fourth Amendment concerns in a
manner similar to all other current administrative subpoena authorities in that
they are subject to a general reasonableness standard, not a probable cause
standard.113 Federal courts have held that in
order to satisfy the general reasonableness standard, the agency issuing the
subpoena, in this instance the Attorney General, must satisfy the court that:
(1) “the investigation will be conducted pursuant to a legitimate purpose,” (2)
“the inquiry may be relevant to the purpose,” (3) “that the information sought
is not already within the Commissioner's possession,” and (4) “the
administrative steps required by the Code have been followed[.]"114 The impact
and application of this standard is discussed in Section II.A.2 supra.

4. Standards Governing the Issuance of
Administrative Subpoenas

The Attorney General signed Order 2468-2001
on June 28, 2001, delegating his authority under 18 U.S.C. §3486 to issue
administrative subpoenas to all United States Attorneys and the Assistant
Attorney General of the Criminal Division.115 The order
also authorizes redelegation of authority from United States Attorneys to
Assistant United States Attorneys as the particular United States Attorneys
deem appropriate. As the Attorney General has not delegated his authority to
issue administrative subpoenas related to healthcare offenses under section
3486(a) to the Director of the Federal Bureau of Investigation (FBI), the FBI
relies on a district’s United States Attorney to issue a subpoena on its
behalf.

Attorney
General guidelines related to investigations, applicable to administrative
subpoena issuance, are contained in Attorney General Guidelines on General
Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations (March 21, 1989). Regulations internal
to the FBI that are relevant to administrative subpoena are found in the Manual
of Investigative Operations and Guidelines (MIOG), Part II, 10-8,2(1),
“Access to Transactional Information: Telephone Toll Records, Subscriber
Listing Information.”

5. Frequency
of use and usefulness of administrative subpoena authority pursuant to
§3486(a)(1)(A)(i)(I).

During
calendar year 2001, United States Attorneys offices issued a total of 2,102
administrative subpoenas in investigations related to health care offenses
pursuant to 18 U.S.C. §3486. The Assistant Attorney General for the Criminal
Division is also authorized to issue subpoenas under this authority but issued no such
subpoenas during calendar year 2001.

Section 3486
subpoenas have been used to obtain bank/financial institution records, medical
records, cost reports, and other documentation typically requested in those
investigations. In addition, the use of
an administrative subpoena provides a mechanism for information sharing between
the FBI, HHS, and other law enforcement agencies as well as the Civil Division
of the Department of Justice. Therefore,
documents and records obtained under the administrative subpoena can be
utilized both in a civil investigation and a criminal investigation stemming
from the same fraudulent scheme. Should
the statutory authority provided in 18 U.S.C. §3486 be revoked, the use of a
grand jury subpoena to obtain the same documents would decrease the opportunity
to share information because of the protective provisions of Fed. R. Crim. P.
6(e). Loss of this information sharing
capacity would hamper the efforts of the Attorney General to fulfill Congress’
intent in providing the authority in HIPAA–to facilitate enforcement of federal
statutes related to health care fraud and abuse and thereby improve the
"availability and affordability of health insurance in the United
States.” See H.R.Rep. No.
104-496, at 1, 66-67, reprinted in 1996 U.S.C.C.A.N. at 1869. A grand jury
subpoena remains an option in such investigations, however, and is sometimes
utilized when confidentiality is important to the development of the case.

Section 3486
authority has been used in notable health care fraud investigations conducted
by the FBI to obtain records and documents in major U.S. cities from various
entities, such as hospitals, nursing homes and individual practitioners,
including medical records, billing records, and cost reports. Through subpoenaed documents, evidence has
been found of fraudulent claims and false statements such as “upcoding,” which
is billing for a higher level of service than that actually provided; double
billing for the same visit; billing for services not rendered; and providing
unnecessary services.

The
incriminating information obtained via an administrative subpoena in these investigations
could have been obtained by grand jury subpoena. However, because an administrative subpoena
can be obtained more quickly and its use avoids the Fed. R. Crim. P. 6(e)
secrecy problems, it is a more flexible investigative tool in health care fraud
cases. For example, information obtained
by administrative subpoena in such investigations may be used not only for
criminal prosecution purposes, but also for negotiating a civil settlement.

As Congress
recognized in authorizing subpoena authority for investigations relating to
health care fraud and abuse in 18 U.S.C. 3486(a), the Attorney General’s
ability to combat such fraud and abuse without this subpoena authority would be
hampered.

The use of administrative subpoenas, in lieu of grand jury subpoenas, has enhanced the ability of the FBI to con online child exploitationoffenses in an expeditious manner. Section 3486 created a speedy mechanism to identify electronic communication services or remote computing services. A timely method was needed because the informat extremely perishable. Many private and commercial online service providers maintain records on Internet usage by periods of time, sometimes two days or less. Although an investigative agency can obtain grand jury subpoenas from Attorney’s Office in exigent circumstances on an expedited basis, more commonly, the agency’s acquisition of grand 35 even weeks. As a result, the Internet service provider is often no longer able to provide the needed information. authority to the United States Attorneys, the Assistant Attorney General for the Criminal Division, and the FBI has fac investigative process necessary to obtaining information that identifies subjects and victimized children. In addition investigative information can be particularly important in cases involving the abuse and exploitation of children. Suc broader when the information is obtained by administrative subpoena, as opposed to by grand jury subpoena, in vi disclosure of grand jury information under Rule 6 of the Federal Rules of Criminal Procedure.

1. Source and Scope of Subpoena Authority
under 18 U.S.C. §3486(a).

The Attorney General or the Attorney
General’s designee is authorized under 18 U.S.C. §3486(a) to issue administrative subpoenas for a limited category of information in criminal investigations pornography, sex abuse and transportation for illegal sexual activity offenses, where the victim was under eighteen. underlying investigation must relate to an act or activity involving a violation of 18 U.S.C. §§1201, 2241(c), 2242, 22 2260, 2421, 2422, or 2423, when the victim was a minor who had not attained the age of eighteen years. Section 348 information that a governmental entity may request from a provider of electronic communications service or remote com provider receiving a subpoena under section 3486 can be required to disclose only the subscriber or customer’s: (1) na long distance telephone toll billing records; (4) telephone number or other subscriber identity; (5) length of service customer or subscriber utilized, which may be relevant to an authorized law enforcement inquiry. 18 U.S.C. §3486(a)(1)(C)(i). administrative subpoenas to obtain testimony is limited to requiring a custodian of records to give testimony conc authentication of such records. 18 U.S.C. §3486(a)(1)(C)(ii). Administrative subpoenas issued under section 3486 m require production as soon as possible after service of the subpoena, but not less than twenty-four hours after such issuance. 18 U.S.C. §3486(a)(9).

2. Applicable Subpoena Enforcement
Mechanisms

The Attorney General has no authority to enforce an administrative subpoena issued under 18 U.S.C. §3486(a). The Attorney General is permitted to invoke the aid of any court of the United States within the j the investigation is carried on or of which the subpoenaed person is an inhabitant, or in which he carries on business or may compliance with the subpoena. 18 U.S.C. §3486(c). Failure to comply with a court order may be punished by the court as contempt. 18 U.S.C. § 3486(c).

Title 18 U.S.C. 2703(c)(2) provides that a governmental entity receiving records from a provider of electroni remote computing
service pursuant to an administrative subpoena requesting the name, address, local and long distance telephone toll bi telephone
number or other subscriber number or identity, and length and type of service does not have to provide addition,
18 U.S.C. §3486(a)(6) allows an entity issuing a subpoena under 3486 authority to obtain an ex parte order preventing the
disclosure of the existence of the summons for 90 days if the court finds that: there is reason to believe that disclosure may
result in: (1) endangerment to the life or physical safety of any person; (2) flight to avoid prosecution; (3) destruction of
or tampering with evidence; or (4) intimidation of potential witnesses. This ex parte order is renewable for additional 90
day period based on a finding that the reasons listed above continue to exist. 18 U.S.C. §3486(a)(6)(B) and (C).

A governmental entity issuing a subpoena request under this
section related to child exploitation and abuse investigations is subject to
the limitations placed on the production of evidence pursuant to compulsory
process, including, but not limited to: (1) 5 U.S.C. §552a (Privacy Act) (disallowing
disclosure without the prior written consent of the person to whom the record
pertains, unless permitted by one of twelve exceptions), with regulations found
at 28

C.F.R. Part
16, Subpart D; (2) 5 U.S.C. §552(b) (Freedom of Information Act exemptions),
Regulations at 28 C.F.R. Part 16, Subpart A; (3) 42 U.S.C. §2000aa-11(a),
“Guidelines for Federal officers and employees,” (relevant when documents are
in the possession of third parties, Regulations at 28 C.F.R. Part 59
(“Guidelines on Methods of Obtaining Documentary Materials Held by Third
Parties”); (4) 20 U.S.C. §1232g(b), Family Educational Rights and Privacy Act
of 1974 (FERPA) (the Buckley Amendment).
Regulations are found at 34 C.F.R. Part 99. SeeSubsection II.A.3 infra for a further
discussion of extrinsic privacy-protective statutes and regulations.

4. Standards Governing the Issuance of
Administrative Subpoenas

The Attorney
General has delegated the administrative subpoena power to all United States
Attorneys, the Assistant Attorney General in charge of the Criminal Division,
and the Director of the Federal Bureau of Investigation. See Attorney
General Order No. 2421-2001, April 5, 2001. The Attorney General’s order also
authorized redelegation to Assistant U.S. Attorneys, Criminal Division trial
attorneys, and FBI Special Agents in Charge (SACs), Assistant Special Agents in
Charge (ASACs) and Senior Supervisory Resident Agents(SSRA). Pursuant to the
Attorney General’s order, the Director of the FBI redelegated his authority to all SACs, ASACs
and SSRAs on April 31, 2001.

5. Frequency
of Use and Usefulness of Administrative Subpoena Authority Pursuant to
§3486(a)(1)(A)(i)(I)

During
calendar year 2001, the United States Attorneys offices issued seventy-one
administrative subpoenas and the FBI issued 1,802 administrative subpoenas
under this authority. The Assistant Attorney General in charge of the Criminal
Division issued no such subpoenas.

The use of an
administrative subpoena is an important tool for the investigation of child
pornography/child sexual exploitation investigations. In cases where children are at “high risk”
and/or may be in imminent danger, the execution of an administrative subpoena
allows immediate requests to be made to the appropriate entity. Furthermore, unlike grand jury material which
is protected under Fed. R. Crim. P. 6(e), information gleaned from the service
of an administrative subpoena can be shared with other law enforcement entities
without delay. Delay could literally
mean the difference between life and death for a threatened child. In contrast, the disclosure limitations
placed on investigators using grand jury subpoenas may not allow investigators
to share information necessary to the location and apprehension of violent
child sexual predators.

The Innocent Images National Initiative is
based on a multi-agency, multi-disciplinary

approach to
investigations. The majority of the
investigations concerning child pornography/sex exploitation of children are
managed jointly with the assistance of state and local authorities. Without the
FBI’s ability to issue administrative subpoenas to service providers to obtain
information, such as the name, address, local and long distance telephone toll
billing records, telephone numbers, and the length and types of services of a
particular subscriber or customer, investigations of child abuse/sex
exploitation offenses would be significantly hindered and would not be
completed as quickly or as successfully.

C. Secret Service Presidential Threat Protection Authorityto
Issue Subpoenas where there is an “Imminent” Threat to Secret Service Protectee, 18 U.S.C. §3486 (a)(1)(A)(ii)

1. Source and Scope of Subpoena
Authority under 18 U.S.C. §3486(a)

Section 3486 (a)(1)(A)(ii) authorizes the
Secretary of Treasury to issue an administrative subpoena if the Director of
the Secret Service determines that a threat against a Secret Service protectee
is “imminent.” Such an administrative
subpoena may compel: (1) the production of any records or other things relevant
to the investigation; and (2) testimony by the custodian of the things required
to be produced concerning the production and authenticity of those things. 18 U.S.C.
§3486(a)(1)(B). Administrative subpoenas
issued under section 3486 may require production as soon as possible after
service of the subpoena, but not less than twenty-four hours after such
issuance. 18 U.S.C. §3486(a)(10).

2. Applicable
Subpoena Enforcement Mechanisms

Subsection (10)(c) authorizes the Attorney
General to seek enforcement by requesting an order from the appropriate United
States district court requiring a subpoenaed person or entity to appear.
Failure to appear may result in a contempt order. 18 U.S.C. §3486 (a)(10)(c). A
federal court petitioned to order compliance with an administrative subpoena
issued under 18 U.S.C. §3486 (a)(1)(A)(ii) must review the subpoena under the
same criterion applicable to all other administrative subpoenas issued by
federal agencies in other circumstances.116

Subsection
(a)(5) permits the recipient of an administrative subpoena to seek to modify
the scope of the administrative demand, or modify any a court nondisclosure
order acquired by the government. 18 U.S.C. §3486 (a)(5).
Subpoenas issued under §3486 in the course of investigating an imminent threat
against a Secret Service protectee are subject to all other limitations placed
on the production of evidence pursuant to compulsory process. See Section II.A.3 infra for a further discussion of
privacy-protective statutes and regulations applicable to the exercise of
administrative subpoena authorities.

In evaluating
the scope of an administrative subpoena issued under 18 U.S.C. §3486(a), the
federal courts apply the principle formulated by the Supreme Court in Oklahoma
Press, generally applicable to executive branch administrative subpoenas,
that an administrative subpoena must be “reasonably relevant” to an agency’s
investigation at issue.117 The permissible scope of an administrative
subpoena is, however, "variable in relation to the nature, purposes and
scope of the inquiry."118 In order to
satisfy the general reasonableness standard, the agency issuing the subpoena,
in this instance the department issuing the subpoena, in this instance the
Secretary of the Treasury, must satisfy the court that: (1) “the investigation
will be conducted pursuant to a legitimate purpose,” (2) “the inquiry may be
relevant to the purpose,” (3) “that the information sought is not already
within the Commissioner's possession,” and (4) “the administrative steps
required by the Code have been followed[.]"119 While the
specific “imminent threat” subpoena authority provided under 18 U.S.C. §3486
(a)(1)(A)(ii) has not been exercised by the Department of Treasury, and
therefore has not been addressed directly in federal court, the general
standard recounted above would presumably apply to an exercise of this
authority.

4. Standards Governing the Issuance of
Administrative Subpoenas

In order to request issuance of a
subpoena by the Secretary of the Treasury under 18 U.S.C.
§3486(a)(1)(A)(ii), the Director of the Secret Service must determine that a
threat against a Secret Service protectee is “imminent.” The Director of the Secret Service may issue
an administrative subpoena under this authority in “an investigation of an
imminent threat constituting an offense under 18 U..S.C. § 871 or 879 or an
imminent threat against a person protected by the Secret Service under 18
U.S.C. § 3056 (5) or (6).” See Treasury Directive 15­58, November 15,
2001. Upon issuing a subpoena under 18
U.S.C. §3486(a)(1)(A)(ii), the Director of the Secret Service must notify the
Attorney General of such issuance. Where
a finding of “imminence” is not appropriate, the Secret Service does not seek
an administrative subpoena but proceeds, instead, through the process of procuring a grand jury subpoena through a local United States Attorney’s
office.

Treasury
Directive 15-58 authorizes the Director of the Secret Service to redelegate
this authority “in writing, in whole or in part, to the Assistant Director,
Office of Protective Research, who may in turn redelegate in writing, in whole
or in part, to the Senior Intelligence Officer/Special
Agent in Charge, Intelligence Division.” Id.

5. Frequency of use and usefulness
of administrative subpoena authority pursuant to 18 U.S.C.
§3486(a)(1)(A)(ii)

During
calendar year 2001, the United States Secret Service (USSS) issued no
administrative subpoenas under 18 U.S.C. §3486(a)(1)(A)(ii). On November 15,
2001, the Secretary of Treasury issued Treasury Directive 15-58, properly
delegating the authority for issuance of administrative subpoenas to the USSS.
While delegation is now complete, the USSS intends to use the authority only
sparingly, in accordance with USSS understanding of Congress’ intent upon
granting such authority. The authority
granted in 18 U.S.C. §3486(a)(1)(A)(ii) is essential to the Secret Service’s
protective function, providing expedited investigation procedures in
particularly threatening and dangerous situations, particularly where an
individual is en route to exercise threats made against the President.

The Department of Justice notes that despite
inconsistencies in the formulation of the many
authorizing statutes, judicial involvement in enforcement ensures a good degree
of fairness–especially where enforcement actions must be initiated and
coordinated by the Department of Justice. As administrative subpoena
authorities are created by separate statutes differing in purpose and content,
and no significant or consistent patterns emerge from a study of these
authorities, making any recommendations generally applicable to these various
authorities would be neither prudent nor practicable. As various agencies participating in the
study referred to suggestions regarding authority-specific changes, the
Department of Justice looks forward to working with Congress and other agencies
in the future to evaluate these potential changes.

Table 1

Frequency
Report, 18 U.S.C. §3486 Administrative Subpoenas

Authority

Issuing Entity

Number of Subpoenas Issued During Calendar Year 2001

18 U.S.C. §3486(a)(1)(A)(I)(1) (Federal Healthcare Offenses)

Attorney General Authority Delegated to United States Attorneys

2,102

18 U.S.C. §3486(a)(1)(A)(I)(1) (Federal Healthcare Offenses)

Attorney General Authority Delegated to Assistant Attorney
General for the Criminal Division, United States Department of Justice

† Denotes supplemental entry derived
from independent research, not submitted by the relevant agency or department

* Denotes
Administrative Law Judge authority (For purposes of this report,
“administrative subpoena” authority has been defined to include all powers,
regardless of name, that Congress has granted to federal agencies to make an
administrative or civil investigatory demand compelling document production or
testimony. Civil compulsory process
authorities with provision for judicial enforcement are included. Grand jury
subpoenas, administrative law judge subpoenas, and investigative authorities requiring judicial approval are not within the scope of
the report; however, descriptions of administrative law judge subpoenas
submitted by individual agencies and entities have been included as submitted.)

Name of Submitting Agency or Entity

Source and Common Name of Authority
(Including Act Name, P.L. and U.S.C. & CFR cites)

Authority to require by
subpoena attendance and testimony of witnesses and production of evidence as
required by the Board to carry out its duties authorized by 42 U.S.C.
7412(r)(6)(C) (investigation of accidental chemical releases, issuance of
safety recommendations, and establishm ent of reporting regulations).

Issuance standard:
“reasonableness,” as determined by the standards set forth in Oklahoma Press
Publ’g Co. v. Walling, 327 U.S. 186 (1946). Procedures: subpoenas must be issued in accordance with
procedures established by an internal Board order.

Authority to require by order
that any person engaged in the production, processing, handling or storage of
extremely hazardous substances submit written r eports or responses to
questions as required by the Board to carry out its duties
authorized by 42 U.S.C. 7412(r)(6)(C).

The CSB’s enabling statute,
42 U.S.C. 7412(r)(6)(M), also authorizes the Board to use the subpoena
authority provided to the Administrator of the EPA by 42 U.S.C. 7607(a)(1)
The authority is to issue subpoenas for the attendance and testimony of
witnesses and the production of relevant papers, books, and documents. This
subpoena authority is an essential tool in conducting investigations,
allowing the Board to obtain the cooperation of, and gather critical
information from, witnesses and companies who are often reluctant and at
times obstructionist. This authority has been used or cited in several
investigations. The authority is to issue subpoenas for the attendance and
testimony of witnesses and the production of relevant papers, books, and
documents.

Issuance standard:
“reasonableness,” as determined by the standards set forth in Oklahoma Press
Publ’g Co. v. Walling, 327 U.S. 186 (1946). Procedures: subpoenas must be issued in accordance with
procedures established by an internal Board order.

“For th e purpose of securing
effective enforcement of [the provisions of the CEA and] for the purpose of
any investigation or proceeding under [the CEA] . . . any member of the Com
mission or any Administrative Law Judge or other officer designated by the
Commission . . . may . . . subpoena
witnesses, compel their attendance . . . and require the production of any
books, papers, corresponden ce, memoranda, or other records that the
Commission deems relevant or material to the inquiry.” 7 U.S.C. § 15.

1. Privacy Act of 1974, 5
U.S.C. § 552a. 2. Records Maintained on Individuals, 17 C.F.R. Part 146
(CFTC’s regulations implementing the Privacy Act). 3. Right to Financial
Privacy Act, 12 U.S.C. § 3401 et
seq. 4. Electronic Communications
Privacy Act of 1986 (“ECPA”), 18 U.S.C. § 2701 et seq. 5. All
information and documents obtained during the course of an investigation and
all investigative proceedings shall be treated as non-public by the CFTC and
its staff except to the extent that (1) the Commission directs or authorizes
the public disclosure of the investigation; (2) the information or documents
are made a matter of public record during the course of an adjudicatory
proceeding; or (3) disclosure is required by the Fr eedom of Information
Act (“FOIA”), 5 U.S.C. § 552, and the rules adopted by the CFTC thereunder,
17 C.F.R. Part 145. Procedures by which persons submitting information to the
CFTC during the course of an investigation may specifically seek confidential
tr eatment of information for purposes of FOIA disclosure are set forth in 17
C.F.R. § 145.9. A request for
confidential tr eatment of information for purposes of FOIA shall not,
however, prevent disclosure for law enforcement purposes or when disclosure
is otherwise found appropriate in the public interest and permitted by law.
17 C.F.R. § 11.3.

1. Th e CFTC’s Division of
Enforcement (“DOE”) requests that the CFTC issue an “Order of Investigation”
delegating its subpoena authority to specifically identified DOE staff
members. 2. An order of the CFTC authorizing one or more member s of the CFTC
or of its staff to issue subpoenas in the course of a par ticular investi
gation shall include (1) a general description of the scope of the
investigation; (2) the authority under which the investigation is being
conducted; and (3) a designation of the member s of the CFTC or its staff
authorized by the CFTC to issue subpoenas. 17 C.F.R. § 11.4. 3. DOE
Enforcement Procedure No. 6, regarding DOE’s application of the Privacy Act,
is a non-statutory procedure. 4. DOE also has prepared Compliance manuals to
provide guidance and procedures for its staff with respect to both the RFPA
and the ECPA.

“For th e purpose of securing
effective enforcement of [the provisions of the CEA and] for the purpose of
any investigation or proceeding under the CEA . . . any member of the Com
mission or any Administrative Law Judge or other officer designated by the
Commission . . . may . . . subpoena witnesses, compel their attendance . . . and require the production
of any books, papers, correspondence, memoranda, or other records that the
Commission deems relevant or material to the inquiry.” 7 U.S.C. § 15.

1. Privacy Act of 1974, 5
U.S.C. § 552a. 2. Records Maintained on Individuals, 17 C.F.R. Part 146
(CFTC’s regulations implementing the Privacy Act). 3. Right to Financial
Privacy Act, 12 U.S.C. § 3401 et
seq. 4. Electronic Communications Privacy Act of
1986 (“ECPA”), 18 U.S.C. § 2701 et
seq. 5. If a person has requested
confidential treatment of infor mation submitted by him or her, either
pursuant to rules adopted by the CFTC under FOIA or under Part 11 of the
CFTC’s rules, the Division of Enfor cement shall notify him or h er, if
possible, that the information is to be disclosed to parties to the
proceeding and he or she may apply to the Administrative Law Judge for an
order protecting the information from disclosure, consideration of which
shall be governed by 17 C.F.R. § 10.68(c)(2). 17 C.F.R. § 10.42(b)(7).

1. Th e Part 10 Rules of Practice
govern adjudicatory proceedings before the CFTC under the CEA. See 17 C.F.R.
§ 10.1. 2. Administrative law judges and judgment officers preside over
adjudicatory proceedings. Presiding
officers are authorized to issue administrative subpoenas.
See 17 C.F.R. § 10.8. 3. In enforcement proceedings, a subpoena ad testificandum shall be issued upon a showing by the requesting party of the general relevance of the testimony being sought. 17 C.F.R. § 10.68. 4. The administrative law judge considering any application for a subpoena duces tecum shall issue the subpoena if he is satisfied th e application complies with 17 C.F.R. § 10.68 and the request is not unreasonable, oppressive, excessive in scope or unduly burdensome. No detailed or burdensome showing shall be required as a condition to the issuan ce of any subpoena. 17 C.F.R. § 10.68.

“For th e purpose of securing
effective enforcement of [the provisions of the CEA and] for the purpose of
any investigation or proceeding under [the CEA] . . . any member of the Com mission or any
Administrative Law Judge or other officer designated by the Commission . . .
may . . . subpoena witnesses, compel their attendance . . . and require the production
of any books, papers, correspondence, memoranda, or other records that the
Commission deems relevant or material to the inquiry.” 7 U.S.C. § 15.

1. Privacy Act of 1974, 5
U.S.C. § 552a; Records Maintain ed on Individuals, 17 C.F.R. Part 146 (CFTC’s
regulations implementing the Privacy Act). 2. Right to Financial Privacy Act,
12 U.S.C. § 3401 et seq. 3. Electronic Communications Privacy Act of
1986 (“ECPA”), 18 U.S.C. § 2701 et
seq. 4. If any party or person
against whom an order to produce has been directed acting in good faith has
reason to believe that any documents or other tangible thing ordered to be
produced contains a trade secret, or commer ciall y sensitive or other
confidential information, the party or person may, in lieu of serving any
such document, file and serve a written request for confidential tr eatment
of such documents. 17 C.F.R. § 12.34. 1

1. The Part 12 Rules Relating
to Reparation Proceedings are the rules of practice applicable to reparations
applications filed pursuant to Section 14 of the CEA, 7 U.S.C. § 18. See 17 C.F.R.
Part 12. 2. Administrative law judges and judgment officers preside over
reparations proceedings and are authorized to issue
admin istrative subpoenas. 17 C.F.R. §§ 12.34, 12.36, 12.101, 12.201, 12.209,
12.304, 12.313. 3. In reparations proceedings, an administrative law judge
considering any application for a subpoena “shall issue the subpoena if he is
satisfied the application complies with this rule and the request is not
unreasonable, oppressive, excessive in scope or unduly burdensome. In the event the Administrative Law Judge
determines that a requested subpoena is unreasonable, oppressive, excessive
in scope or unduly burdensome, he may refuse to issue the subpoena, or may
issue it only upon such conditions as he determines fairness requires.” 17 C.F.R. § 12.313(a).

“[F]or the purpose of . . .
any action taken under section 16(f) of this title, any member of the
Commission or any Administrative Law Judge or other officer designated by the
Commission . . . may . . . subpoena witnesses, compel their
attendance . . . and require the production of any books, papers,
corresponden ce, memoranda, or other records that the Commission deems
relevant or material to the inquiry.” 7 U.S.C. § 15.

1. Section 6(c) of the CEA
authorizes the CFTC to issue administrative subpoenas “for the purpose of any
action taken under section 12(f).” 7 U.S.C. § 15. 2. Section 12(f) of the CEA authorizes the CFTC, in
its discretion and “[o]n request from a foreign futures authority” to provide
assistance in accordance with this section if the requesting authority states
that the requesting authority is conducting an investigation which it deems
necessary to determine whether any person has violated, is violating or is
about to violate any laws, rules or regulations relating to futures or
options matters that the requesting auth ority admin isters or enforces. The CFTC may conduct such investigation as
the CFTC deems necessary to collect information and evidence pertinent to the
request for assistance. Such assistance m ay be provided without regard to
whether the facts stated in the request would also constitute a violation of
the laws of the United States. 7 U.S.C. § 16(f). 3. In deciding whether to
provide assistance to a foreign futures authority, the CFTC sh all consider
whether “(A) the requesting authority has agreed to provide reciprocal
assistance to the [CFTC] in futures and options matter s; and (B) compliance with the request
would prejudice the public interest of the United States.” 7 U.S.C. § 16(f)(2).

Production of all
information, documents, reports, answers, records, accounts, papers, and
other data and documentary evidence (regardless of medium) necessary for the
performance of the functions assigned under the Inspector General Act
(essentially a subpoena duces tecum).

In case of refusal to obey,
enforcement is obtained by order of any appropriate U.S. district court.

1. Privacy Act of 1974, 5
U.S.C. § 552a. 2. Records Maintained on Individuals, 17 C.F.R. Part 146
(CFTC’s regulations implementing the Privacy Act). 3. Right to Financial
Privacy Act (“RFPA”), 12 U.S.C. §§ 3401 et
seq. Notification requirements of
ten days from the date of service or fourteen days from the date of mailing
of notice apply when records at a financial institution are sought of
customers covered by the RFPA. Customers have a right to challenge in an
appropriate U.S. district court during the notice period. 4. Electronic
Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. § 2701 et seq. >

There are not specific
issuance standards, qualifiers or procedures in connection with the issuance
of administrative subpoenas by the Inspector General.

The CFTC, or persons by or on
behalf of the CFTC, are authorized to issue administrative subpoenas to any
foreign person who the CFTC believes is conducting or has conducted
transactions in reliance on the exemption set forth in 7 U.S.C. § 2(h)(3)
(2000) on or through the electronic trading facility relating to the
transactions. 7 U.S.C. § 2(h)(5)(C)(i).

If the CFTC h as rea son to
believe that a per son has not timely complied with a subpoena issued by or
on behalf of the CFTC pursuant to 7 U.S.C. § 2(h)(5)(C)(i), and
the CFTC has in writing directed that a facility relying on the exemption set
forth in 7 U.S.C. § 2(h )(3) deny or limit further transactions by the
person, the facility shall deny that person further trading access to the
facility or, as applicable, limit that person’s access to the facility for
liquidation trading only. 7 U.S.C. § 2(h)(5)(C)(ii).

The r ecipient of a subpoena
must “promptly notify the foreign person of, and transmit to the foreign
person, the subpoena in a mann er reasonable under the
circumstances, or as specified by the CFTC.” 7 U.S.C. § 2(h)(5)(C)(i).

Section 6(a)(4) of the
Inspector General Act auth orizes an Office of Inspector General “to require by subpoena the
production of all information, documents, reports, answers, records,
accounts, papers, and other data and documentary evidence necessary in the
performance of the functions assigned by this Act.” 5 U.S.C. § 5 U.S.C. App §
6(a)(4).

With respect to subpoenas
under the Inspector General Act, if the person does not respond to the subpoena, or
file a motion to quash it, OIG requests the U.S. Department of Justice to
file a Petition for Enforcement of Subpoena in the appropriate Federal
district court.

With respect to the Inspector
General Act, a person is permitted ten days from receipt, or fourteen days from the
mailing of the notice of subpoena, to comply with the deman d, or file a
motion to quash it, in the appropriate Federal district court.

An Inspector General subpoena
must be 1) issued for a lawful purpose within the statutory authority of the
Inspector General’s Act, 2) reasonably relevant to that purpose, and 3) not
unduly burdensome. See Burlington
Northern R.R. Co. v. Office of Inspector General, R.R. Retirement Board, 983
F. 2d 631, 637 (5th Cir. 1993).

Section 3405 of the Right to
Financial Privacy Act states that a “government authority may obtain
financial records under section 3402(2) of this title pursuant to an
administrative subpoena or summons otherwise authorized by law.” 12 U.S.C. §
3405.

With respect to the Right to
Financial Privacy Act, if the data subject of the records fails to respond,
or files a motion to quash, then the responsible financial institution must
deliver that person's financial records to OIG after OIG presents a
Certificate of Compliance with the Right to Financial Privacy Act to the
appropriate records custodian.

With respect to the Right to
Financial Privacy Act, a person is permitted ten days from receipt, or
fourteen days from the mailing of the notice of subpoena, to file a mot ion
to quash it in the appropriate Federal district court. A Privacy Act Notice is included with the
subpoena, pursuant to subsection (e)(3) of the Privacy Act of 1974, 5 U.S.C.
§ 552a(e)(3).

An Inspector General subpoena
must be 1) issued for a lawful purpose within the statutory authority of the
Inspector General’s Act, 2) reasonably relevant to that purpose, and 3) not
unduly burdensome. See Burlington
Northern R.R. Co. v. Office of Inspector General, R.R. Retirement Board, 983
F. 2d 631, 637 (5th Cir. 1993).

Defense Contract Audit Agency (under the Authority, Direction, and Control of the
Undersecretary of Defense–Comptroller)†

10 U.S.C. §2313(b) DCAA
subpoena authority.--(1) The Director of the Defense Contract Audit Agency
(or an y successor agency) may require by subpoena the production of any
records of a contractor that the Secretary of Defense is auth orized to audit
or examine under subsection (a). Subsection (a): “(a) Agency authority.--(1)
The head of an agency, acting through an auth orized representative, is authorized to inspect the
plant and audit the records of-­(A) a con tractor performing a
cost-reimbursement, incentive, time-and­materials, labor-hour, or
price-redeterminable contract, or any combination of such contracts, made by
that agency under this chapter; and (B) a subcontr actor performing any
cost-reimbursement, incentive, time-and­materials, labor-hour, or
price-redeterminable subcontract or any combination of such subcontracts
under a contract referred to in subparagraph (A). (2) The head of an agency,
acting through an authorized representative, is authorized, for the purpose
of evaluating the accuracy, completeness, and currency of certified cost or
pricing data required to be submitted pursuant to section 2306a of this title
with respect to a contract or subcontract, to examine all records of the
contr actor or subcontractor related to-­(A) the proposal for the contract or
subcontract; (B) the discussions conducted
on the proposal; (C) pricing of the contract or subcontract; or (D)
performance of the contract or subcontract.” 10 U.S.C. §2313(b).

(2) Any such subpoena, in the
case of contumacy or refusal to obey, sh all be enforceable by order of an
appropriate United States district court. 10 U.S.C. §2313(b)(2).

(3) The authority provided by
paragraph (1) may not be redelegated. 10 U.S.C. §2313(b)(3).

The Administrative Law Judge
(ALJ) presiding over Food Stamp Program Quality Control Claim Appeals has
subpoena authority as provided to him by section 13(c) and (d) of the
Perishable Agricultural Commodities Act of 1930 (7 U.S.C. 499m(c) and (d)).

In case of disobedience to a
subpoena, the Secretary or any of her examiners may invoke the aid of any
court of the United States in requiring the attendance and testimony of
witnesses and the production of accounts, records, and memoranda. Any
district court of the United States within the jurisdiction of which any hear
ing is carried on may, in case of contumacy or refusal to obey a subpoena issued
to any person, issue an order requiring the person to
appear before the Secretary or her examiner or to produce accounts, records,
and memoranda if so ordered, or to give evidence touching any matter
pertinent to any complaint; and any failure to obey such order of the court
shall be punished by the court as a contempt thereof.

When the ALJ issues a
subpoena under the Food Stamp Act, the party who requested the subpoena shall
serve all other parties with a copy of the subpoena, notice of the names and
addresses of the individuals subpoenaed an d specify any documents required
to be produced.

Subpoenas shall be issued by
the ALJ, over the facsimile signature of the Secretary, upon a reasonable
showing by the applicant of the grounds, necessity and reasonable scope
thereof.

7 C.F.R. § 1.304, authorizes
an investigating official, who is investigating an individual’s liability
under 7 C.F.R. § 1.303 (dealing with false statements, etc.), to issue a
subpoena. 7 C.F.R. §§ 1.319, 1.322, 1.323,1.328 authorizes an ALJ conducting
a hearing under the PFCRA to issue subpoenas requiring the attendance of
witnesses and the production of documents at depositions or hearings

An ALJ may sanction a person,
including any party or representative for failing to comply with a lawful
subpoena. Sanctions include: drawing an inference in favor of the requesting
party with regard to the information sought; in the case of requests for
admission, deem admitted each item as to which an admission is requested;
prohibit the party failing to comply with such or der from introducing
evidence concerning, or otherwise relying upon testimony relating to the information sought; strike
any part of the pleadings or other submissions of the party failing to comply
with such requests; or request the Attorney General petition an appropriate
district court for an order to enforce a subpoena.

When an ALJ issues a subpoena
under the PFCRA, the party who requested the subpoena must serve all other
parties with notice of the names and addresses of the individuals subpoenaed
an d specify any documents required to be produced.

A subpoena issued under 7
C.F.R. § 1.304 must notify the per son to wh om it is addressed of the
authority under which it is issued and shall identify the information,
documents, reports, answers, records, accounts, papers, or data sought. The investigating official may designate a
person to act on his behalf to receive the documents or other materials
sought by a subpoena issued. For a subpoena to be issued by an ALJ, the party
requesting the subpoena must submit a written request not less than
15 days before the date fixed for the hearing unless otherwise allowed by the
ALJ for good cause shown.

An Administrative Law Judge
hearing an appeal pursuan t to the Contract Disputes Act (CDA) of 1978 (41
U.S.C. 601-613), may issue a subpoena requiring testimony at a deposition,
testimony at a hear ing, and production of books and papers. For non-CDA
appeals the Chair of the Board has auth ority by delegati on from the
Secretary to request the appropriate United States Attorney to apply to the
appropriate United States District Court for the issuance of subpoenas pur
suant to 5 U.S.C. 304.

In the case of contumacy or
refusal to obey a subpoena by a person who resides, is found, or transacts
business within the jurisdiction of the United States District Court, the
Board will apply to the Court through the Attorney General of the United
States for an order requiring the person to appear before the Board. A
failure to obey such an order is punish able by a contempt order.

In issuing the subpoena to a
requesting party, the ALJ shall sign the subpoena and may, in the Judge’s
discretion, enter the name of th e witness or otherwise leave it blank.

The Director of NAD and
Hearing Officers have the authority to issue subpoenas compelling the
attendance of witnesses and production of evidence.

If a person refuses to obey a
subpoena, the Director, acting through the Office of the General Counsel of
the USDA and the Department of Justice, may apply to the United States
District Court in the jur isdiction where the person resides to have the subpoena
enforced.

A Hearing Officer must obtain
the con currence of the Director prior to issuing a subpoena. A subpoena shall be issued for documents
only if the Director or Hearing Officer determine that the appellant or the
agency has established that production of documentary evidence is necessary and is reasonably
calculated to lead to information which would affect the final determination
or is necessary to fully present the case before the Division. A subpoena shall be issued for appearance
of a witness only if the Director or Hearing Officer determines that the
appellan t or the agency has established that either a representative of the
Department or a private individual possesses information that is pertinent
and necessary for disclosure of all relevant facts which could impact the
final determination, that information can not be obtained except through
testimony of the person, and that the testimony cannot be obtained absent
issuance of a subpoena.

The Secretary may require by
subpoena the atten dance and testimony of witnesses and the production of
books, papers, and documents relating to any matter under investigation or
the subject of a proceedings.

The Secretary may invoke the
aid of the appropriate U.S. District Court to enforce subpoenas.

Incorporates Section 9 of the
Federal Trade Commission Act (15 U.S.C. 48) which authorizes the Secretary to
require by subpoena the attendance and testimony of witnesses and the production of all such
documentar y evidence relating to any matter under investigation or at any
desi gnated place of hearing.

The Secretary may invoke the
aid of the appropriate U.S. District Court to enforce subpoenas.

The Administrator may require by subpoena the attendance and
testimony of witnesses and the production of all such documentar y evidence
relating to any matter under investigation or at any designated place of
hearing.

The Administrator may invoke the aid of the U.S. District
Courts, the District Court Of Guam, the District Court of the Virgin Islands,
the highest court of American Samoa, and the United States courts of other
territories and possessions of the United States to enforce subpoenas.

This section adopts section s
48, 49 and 50 of Title 15 (Federal Trade Commission Act) which may require by
subpoena the attendance and testimony of witnesses and the production of documents relating to any
matter under investigation or the subject of a
proceeding.

The Secretary may invoke the
aid of the appropriate U.S. District Court to enforce subpoenas.

The Secretary may require by
subpoena the atten dance and testi mony of witnesses and the production of
documents relating to any matt er un der investi gati on or th e subject of a
proceeding.

The Secretary may invoke the
aid of the appropriate U.S. Dist rict Court to enforce subpoenas.

Service of a subpoena is
required.

During investigation or administ rative
proceedings.

US Department of Agriculture OGC Marketing Division

AMS Federal Seed Act, 7
U.S.C. 1551-1611, 7 U.S.C. 1603.

The Secretary may require by
subpoena the atten dance and testi mony of witnesses and the production of
documents relating to any matt er un der investi gati on or th e subject of a
proceeding. The Secretary may also
require access to office and warehouse premises.

The Secretary may invoke the
aid of the appropriate U.S. Dist rict Court to enforce subpoenas.

The Secretary may require by
subpoena the atten dance and testi mony of witnesses and the production of
documents relating to any matt er un der investi gati on or th e subject of a
proceeding.

The Secretary may invoke the
aid of the appropriate U.S. Dist rict Court to enforce subpoenas.

Service of a subpoena is
required.

During investigation or
administ rative proceedings.

US Department of Agriculture OGC Marketing Division

AMS Tobacco Inspection Act, 7
U.S.C. 511-511q, 7 U.S.C. 511n.

The Secretary may require by
subpoena the atten dance and testi mony of witnesses and the production of
documents relating to any matt er un der investi gati on or th e subject of a
proceeding.

The Secretary may invoke the
aid of the appropriate U.S. Dist rict Court to enforce subpoenas.

Service of a subpoena is
required.

During investigation or
administ rative proceedings.

US Department of Agriculture OGC Pollution Control

Section 104(e) of the Compr
ehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42
U.S.C. § 9604(e), as delegated by Section 2(j) of Executive Order No. 12580
(52 Fed. Reg. 2923, Jan. 29, 1987). In Executive Order 12580, the President
delegated to the Secretary of Agriculture the authority under Section 104(e)
of the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. § 9604(e), to make a n administrative investigatory
demand compelling the production of documents and information relating to
releases and threatened releases of hazardous substances on lands within USDA
jurisdiction, custody and control.

Authority to require any
person to furnish information or documents relating to: (a) the
identification, nature, and quantity of hazardous substances generated,
treated, stored, or disposed of at a site; (b) the nature or extent of a
release or threatened release of hazardous substances at a site; or (c)
information relating to the ability of a respon sible party to pay for or to
perform a cleanup. This auth ority may be exercised only for purposes of
determining the need for respon se action, or choosing or taking any response
action under CERCLA.

With respect to releases or
threatened releases where either the release is on or the sole source of the
release is from any facility under USDA jurisdiction, custody, or control,
the Secretary may issue, with the concurrence of the Attorney General, an administrative
order directing compliance with the request. USDA may ask the Attorney
General to file a civil action to compel compliance with a request or order
issued under Section 104(e). The Court may assess civil penalties of up to
$25,000 for each day of continued noncompliance.

A CERCLA Section 104(e) infor
mation request may be issued upon reasonable notice. USDA’s Section 104(e)
information request require recipients to respond within 30 days, or
adequately justify the need for additional time to respond. An administrative
compliance order under Section 104(e)(5)(A), may be issued “after such notice
and opportunity for consultation as is reasonably appropriate under the
circumstances.” Any records, reports, or information obtained from any person
under Section 104(e) are available to th e public, except upon a showing that
the information is protected from disclosure under the Trade Secrets Act, 18
U.S.C. § 1905. In the event that USDA receives a Freedom of Information Act
request for information which has been designated as business confidential,
USDA will handle the request in accordance with the procedures in 40 C.F.R.
Part 2 and 7 C.F.R. § 1.11. Information provided to USDA by an individual in
response to a CERCLA Section 104(e) information request may also
be protected from public disclosure under the Privacy Act, 5 U.S.C. § 552a.

USDA standards and policy for
the issuan ce of CERCLA Section 104(e) information requests is contained in
the USDA Potentially Responsible Party (PRP) Search Guide (June 2001). The Search Guide provides that CERCLA
Section 104(e) information requests should be tailored to site specific needs
and to the particular recipient of the request. USDA CERCLA Section 104(e)
information request letters should be prepared with the assistance of the
Office of the General Counsel (OGC). OGC should also be consulted in
reviewing responses to CERCLA Section 104(e) requests and in the preparation
of any follow-up Section 104(e) requests. The USDA PRP Search Guide states
that, as a General rule, r equests for financial information should not be
included in the initial request letter. A request for financial information
is normally only appropriate once the potential liability of a party has been
established. A PRP should be asked
that if the PRP believes she, he, or it has an inability to pay its share of
the cleanup costs, the PRP should contact the
agency. The agency should then send
appropriate financial questi ons to the PRP for purposes of making the
ability to pay determination. Financial information necessary to determine a PRP’s financial ability
to perform cleanup work may also be requested, when appropriate.

Administrative subpoena
authority is provided by the provisions of the Federal Trade Commission Act
in 15 U.S.C. 46, 48, 49, 50, incorporated by reference into these 3 statutes.
• PPIA incorporation is found in 21 U.S.C. 467d.
• FMIA incorporation is
found in 21 U.S.C. 677.
• EPIA incorporation is found in 21 U.S.C. 1051.

Administrative subpoenas for
testimony and production of documen ts are issued by USDA Administrative Law
Judges at the request of any party to an administrative proceeding brought to
enforce the statutes. Investigative subpoenas are issued by the Secretary’s
delegatee, the Administrator of the Food Safety and Inspection Service. If a
subpoena is not honored, the General Counsel can seek judicial enforcement of
that subpoena by the Department of Justice in a Federal district court.

The Food Safety and
Inspection Service will first seek document production or testimony on a
voluntary basis. If the requested documents or testimony are not provided on
a voluntary basis, a subpoena will be issued to compel their production. The
Privacy Act and the Trade Secrets Act provisions and prohibitions are
applicable to the exercise of subpoena authorities.

The Secretary’s delegatee,
the Administrator of the Food Safety and Inspection Service, makes the
initial decision to issue an administrative investigative subpoena. The General Counsel must concur in
the issuance of the subpoena. An administrative subpoena will be issued by
USDA administrative Law Judges in administrative proceedings upon a
reasonable showing by the applicant of the grounds and necessity thereof; and
with respect to subpoenas for the production of documents, the request shall
show their competency, relevan cy and materiality. See 7 C.F.R 1.149.

Administrative subpoena
authority relating to the administration or enforcement of the Acts and any
matter under invest igation in connection with the Acts.

Administrative subpoenas for
testimony and production of documen ts are issued by USDA Administrative Law
Judges at the request of any party to an administrative proceeding brought to
enforce the statutes. Investigative subpoenas are issued by the Secretary’s
delegatee, the Administrator of the Animal and Plant Health Service. If a
subpoena is not honored, the General Counsel can seek judicial enforcement of
that subpoena by the Department of Justice in a Federal district court.

The Animal and Plant
Health Inspection Service will first
seek documen t production or testimony on a voluntary basis. If the requested
documents or testimony are not provided on a voluntary basis, a subpoena will
be issued to compel their production. The Privacy Act and the Trade Secrets
Act provisions and prohibitions are applicable to the exercise of subpoena
authorities.

The Secretary’s delegatee,
the Administrator of the Animal and Plant Health Inspection Service, makes
the initial decision to issue an administrative investigative subpoena. The
General Counsel must concur in the issuance of the subpoena. An
administrative subpoena will be issued by USDA Administrative Law Judges in
administrative proceedings upon a reasonable showing by the applicant of the
grounds and necessity thereof; and with respect to subpoenas for the
production of documents, the request shall show their competency, relevancy
and materiality. See 7 C.F.R. 1.149.

Packers, stockyards, dealers,
market agencies; and those with whom it does business. Investigatory
subpoenas issue pursuant to section 9 of FTC Act [15 U.S.C. 49] - access to
and right to copy documents of entity being investigated for violation of
Act. Section 6 [15 U.S.C. 46]- to
gather and compile infor mation re: business, organization and conduct. Section 9­hear
ing subpoenas for attendance, testimony and documents; from anywhere in US to
place of hearing.

Section 9 of FTC Act ­Enforcement
in any court in US for hearing subpoenas.
Investigatory subpoenas enforced in district court. Both handled by
local AUSA Office.

No notification req’ts except
those specific to Right to Financial Privacy Act). Forthwith demand issued when circumstances
warrant.

Must have statutory
jurisdiction over person and activity under investigation or being proceeded
against, which is basis for authority to subpoena records in possession of
unregulated entities. Reviewed for legal sufficiency by OGC. Investigatory
subpoenas issued by agency Adm’r and served by agency investigator. Hearing subpoenas for witnesses
sought by OGC attorn ey, issued by ALJ, served by OGC attorney.

Section 13(d)[7 U.S.C.
499m(d)] -investigatory subpoenas enforced in any court in US; hearing
subpoenas are enforced in district court where hearing held. Both handled by
local AUSA Office.

No notification requirements;
time usually provided to amass required records. Notification requirements
specific to Right to Financial Privacy
Act (Pub. L. 95-630) when seeking financial records of individual.

Must have statutory
jurisdiction over person and activity under investigation or being proceeded
against, which is basis for authority to subpoena records in possession of
financial institutions. Subpoena requests ar e reviewed for legal sufficiency
by OGC. Investigatory subpoenas are issued by agency Administrator. Ser ved by agency investigator. Hearing
subpoenas for witnesses sought by OGC attorney, issued by ALJ, served by OGC
attorney. Subpoenas and subpoenas duces tecum in reparation cases sought by
att’y, issued by OGC Presiding Officer, served by att’y. Standards for
issuance at 7 CFR 47.17.

OIG-USDA is auth orized to
"require [by subpoena] the production of all information, documents,
reports, answers, records, accounts, papers, and other data and documentary
evidence necessary in the performance of the functions
assigned by the IG Act." 5 U.S.C.A. app. 3 § 6(a)(4). OIG-USDA, in
general, is authorized to issue subpoenas under 7 C.F.R. § 2610.1.

In case of a "refusal to
obey", OIG may seek the enforcement of a subpoena in any appropriate
United States district court. 5 U.S.C. app. 3 § 6(a)(4).

Privacy: OIG-USDA internal
procedures require that special agents and auditors maintain all subpoenaed
documents "securely" within OIG­USDA case/audit files. See IG-8551
§ C1f (1) (Legal Procedures and
Aspects). OIG-USDA internal
procedures and the Privacy Act prohibit OIG­USDA from disclosure of
"personally identifiable records" under certain circumstances. See 5 U.S.C.A. § 552a(a), et seq.; see
also IG-1421 (Personal Privacy Information). OIG­USDA internal procedures
require that any original subpoenaed document be returned to the subpoena
addressee. See IG-8551 § C1f(3) (Legal Procedures and Aspects). Notification Requirements: OIG­USDA
internal procedures and the Right to Financial Privacy Act ("RFPA")
require OIG­USDA to provide notice of RFPA subpoenas to a customer with a
copy of the subpoena. See 12 U.S.C.A.
§ 3401, et seq.; see also IG-1421Hc(2)(a) (Information
Services").

Standards: OIG subpoena
authority is limited to "evidence necessary in the performance of the
function assigned by this Act [IG Act]."
5 U.S.C. app. 3 § 6(a)(4). OIG should obtain information
from other Federal agencies by means oth er than subpoenas. 5 U.S.C.A. app. 3 § 6(a)(4). OIG-USDA internal procedures and the RFPA
prohibit release of records without
certification of RFPA compliance. See 12 U.S.C.A. § 3403(b); see also
IG-1427 (C)(4) (Information Services).
Procedures: -OIG-USDA internal procedures require that subpoenas be
reviewed by OIG management and Legal Staff.
See IG-8551 (C2­C5) (OIG Subpoenas). OIG-USDA internal procedures
restrict transfer of RFPA records except in accord with the RFPA. See IG-8611
(C7(c)(1)) (Investigative Reports). OIG-USDA internal procedures require
retention of audit work papers, some of which may include documen ts obtained
by subpoena. See IG-7215 (The Audit
Process: General Requirements ­Working Papers).

US Department of Agriculture Regulatory authority for issuing admin istrative subpoenas that could not be
ascribed to a particular division within the USDA.

The hearing panel may compel
production of documentary evidence, appearance of witnesses, or the giving of
testi mony by subpoena throughout all signatory states pursuant to
section 16(a) of the Compact.

US Department of Agriculture Regulatory authority for issuing admin istrative
subpoenas that could not be ascribed to a particular division within the
USDA.

In a hearing to determine if
the Hass Avocado Act has been violated the presiding officer may subpoena
witnesses.

In the case of contumacy by,
or refusal to obey a subpoena issued under the Act, any person, the Secretary
of Agriculture may invoke the aid of any court of the United States within
the jurisdiction of which the investigation or proceeding is conducted, or
wher e the person resides or conducts business, in order to enforce a
subpoena. Any failure to obey the
order of the court may be punished by the court as a contempt of the court.

Department of Agriculture†

7 U.S.C. §1446

Price support investigations

Department of Commerce

US Department of Commerce*
National
Oceanic And Atmospheric Administration (NOAA) Enforcement and Litigation

The MSFCMA provides that,
“[f]or the purposes of conducting any hearing [under the civil penalties
section ], the Secretary of Commerce may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant papers, books, and documents...” 16 U.S.C. § 1858(e).

NOAA’s civil procedure
regulations, which apply in NOAA’s administrative proceedings, may be found
at 15 C.F.R. – Part 904. Under 15 C.F.R § 904.245(d), “[i]n case of
disobedience to a subpoena, NOAA may request
the Justice Department to invoke the aid of any court of the United States in
requiring the attendance and testimony of witnesses and the production of
documentary evidence.” Under 15 C.F.R. § 904.108 (g), a respondent’s failure
to respond to written interrogatories or discovery requests pertaining to
ability to pay “may serve as the basis for inferring that such information
would have been adverse to any claim
by respondent of inability to pay the assessed penalty, or result in
respondent being barred from asserting financial hardship.” This inference
may be drawn by the enforcement attorney in assessing th e penalty or by the
Judge in reviewing th e penalty. Under 15 C.F.R. § 904.240 (f), “[i]f a party
fails to comply with any subpoena or order concerning discovery, the Judge
may, in the interest of justice: (1) [i]nfer that the admission, testimony,
documents, or other evidence would have been adverse to the party; (2) [r]ule
that the matter or matters covered by th e order or subpoena are established
adversely to the party; (3) [r]ule that the party may not introduce into
evidence or otherwise rely upon, in support of any claim or defense,
testimony by such party, officer, or agent, or the documents or other
evidence; (4) [r]ule that the party may not be heard to object to
introduction and use of secondary evidence to show what the withheld
admission, testimony, documents or other evidence would have shown; (5)
[s]trike all or part of a pleading (except a request for hearing), a

Right to Financial Privacy
Act (P.L. 95-630)

Under 15 C.F.R § 904.245 (a) “[s]ubpoenas for the
attendance and testimony of witnesses and the production of documen tary
evidence for the purpose of discovery or hearing may be issued as authorized
by the statute under which the proceeding is conducted.”

These administrative
subpoenas may only be issued by an Administrative Law Judge. See 15 C.F.R.
§ 904.204 (i).

US Department of Commerce National Oceanic And Atmospheric Administration (NOAA) Enforcement and Litigation

Endangered Species Act (ESA),
16 U.S.C. § 1531 et seq.

The ESA provides that
“[h]earings held during proceedings for the assessment of civil penalties ...
shall be conducted in accordance with section 554 of Title 5. The Secretary
may issue subpoenas for the attendance and testimony of witnesses and the
production of relevant papers, books, and documents, and administer oaths.”
16 U.S.C. § 1540(a)(2).

“

“

“

US Department of Commerce National Oceanic And Atmospheric Administration (NOAA) Enforcement and Litigation

National Marine Sanctuaries
Act (NMSA), 16 U.S.C. § 1431 et
seq.

The NMSA provides that “[i]n
the case of any hearing ... in accordance with the procedures provided for un
der section 554 of Title 5, the Secretary may issue subpoenas for the
attendance and testimony of witnesses and the production of relevant papers,
books, and documents, and may administer oaths.” 16 U.S.C. § 1437(f).

“

“

“

US Department of Commerce National Oceanic And Atmospheric Administrat ion (NOAA) Enforcement and Litigation

Northern Pacific Halibut Act
of 1982, 16 U.S.C. § 773 et seq.

The Halibut Act provides
that, “[F]or th e purpose of all investigations which, in the opinion of the
Secretary, are necessary and proper for the enforcement of this subchapter,
the Secretary or any officer designated by him is empowered to administer
oaths and affirmations, subpoena witnesses, take evidence, and require the
production of any books, papers, or other documents which the Secretary deems
relevant or material to the inquiry. Such attendance of witnesses and the
production of such documentary evidence may be required from any place in the
United States at any design ated place or hearing.” 16 U.S.C. § 773i(f)(2).

“

“

“

US Department of Commerce National Oceanic And Atmospheric Administration (NOAA) Enforcement and Litigation

Atlantic Tuna Conventions Act
(ATCA), 16 U.S.C. § 971 et seq.

The ATCA incorporates by
reference the civil penalty and permit sanction provisions of the
Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) for
violations of the ATCA. 16 U.S.C. § 971(e).

“

“

“

US Department of Commerce* National Oceanic And Atmospheric Administrat ion (NOAA) Enforcement and Litigation

Lacey Act, 16 U.S.C. § 3371 et seq. >

The Lacey Act provides that
“[h]earings held during proceedings for the assessment of civil penalties
shall be conducted in accordance with section 554 of Title 5. The
administrative law judge may issue subpoenas for the attendance and testimony
of witnesses and the production of relevant papers, books, and documents, and
administer oaths.” 16 U.S.C. § 3373(b).

“

“

“

US Department of Commerce NOAA, National Environmental Satellite, Data, and
Information Service

materials, documents, or
records, or for the attendance and testimony of witnesses for the purpose of
conducting a hearing under this section,” as well as the ability to “seize
any object, record, or report pursuant to a warrant from a magistrate based on
a showing of probable cause to believe that such object, record, or report
was used, is being used, or is likely to be used in violation of this Act . .
. “ 15 U.S.C. § 5623(a)

incorporated by
reference. Specifically, under 15 CFR
§ 960.15, “As authorized by Section 203(a) of the Act, if the Secretary . . .
determines that the licensee has substantially failed to comply with the Act,
the regulations in this part, or any term, condition or restriction of the
[NOAA] license, the Secretary . . . may request the appropriate U.S. Attorney
to seek an order of injun ction or similar judicial determination from the
U.S. District Court for the District of Columbia Circuit or a U.S. District
Court within which the licensee resides or has its prin cipal place of business,
to terminate, modify, or suspend the license, and/or to terminate licensed
operations on an immediate basis.” Additionally, under 15 CFR § 960.15, “ . .
. (a) any person who violates any
provision of the Act, any license issued thereunder, or the regulations in
this part may be assessed a civil penalty by the Secretary of not more that
$10,000 for each violation. Each day of operation in violation constitutes a separate violation. All civil penalties [sic] procedures shall
be in accordance with 15 CFR Part 904. (b) Violation of the Act, this part,
or any license issued under this part, may be subject to criminal penalty
provisions prescribed in other applicable laws.”

US Department of Commerce NOAA

Fur Seal Act

16 U.S.C. § 1174

This mechanism has not been used in the recent past.

US Department of Commerce NOAA

Anadromous Stocks

16 U.S.C. § 5010

This mechanism has not been used in the recent past.

US Department of Commerce NOAA

High Seas Fishing Compliance

16 U.S.C. § 5507

This mechanism has not been used in the recent past.

US Department of Commerce NOAA

Ocean Thermal Energy

42 U.S.C. § 9152

This mechanism has not been used in the recent past.

US Department of

Comprehensive

42 U.S.C. § 9609

Used to collect

Commerce NOAA

Environmental Response,
Compensation and Liability Act ( CERCLA)

information on hazardous
waste sites.

Department of Commerce †

15 U.S.C. §155 The Secretary
of Commerce may authorize such Foreign Service officer as Secretary of State
shall make available to perform duties of China Trade Act Registrar under his
direction. The statute states that the
Registrar is to be located in China.

(a) Subpoena for attendance
of witness and production of records, etc. For the efficient administration
of the functions vested in the registrar by this chapter, he may require, by
subpoena issued by him or under his direction, (1) the attendance of any
witness and the production of any book, paper, documen t, or other evidence
from any place in China at any designated place of hearing in China, or, if
the witness is actually resident or temporarily sojourning outside of China,
at any designated place of hearing within fifty miles of the actual residence
or place of sojourn of such witness, and (2) th e taking of a deposition
before any designated person having power to administer oaths. In the case of
a deposition, the testimony shall be reduced to writing by the person taking
the deposition or under his direction, and shall th en be subscribed by the
deponent. The r egistrar, or any officer , empl oyee, or
agent of the United States auth orized in writing by him, may administer
oaths and examine any witness. Any witn ess summoned or whose deposition is
taken under this secti on shall be paid the same fees and mileage as are paid
witnesses in the courts of the United States. 15 U.S.C. §155(a).

(b) Aid of Federal district
court In the case of failure to comply with any subpoena or in the case of
the contumacy of any witness before the registrar or any individual so
authorized by him, the registrar or such individual may invoke the aid of any
Federal district court. Such court may thereupon order the witness to comply
with the requirements of such subpoena and to give evidence touching the
matter in question. Any failure to obey such order may be punished by such
court as a contempt thereof. 15 U.S.C. §155(b).

Department of Commerce†

15 U.S.C. §155 The Secreta ry
of Commerce may authorize such Foreign Service officer as Secretary of State
shall make available to perform duties of China Trade Act Registrar under his
direction. The statute states that the
Registrar is to be located in China.

(d) Access of registrar or
his employee to books and records For the efficient administration of the
functions vested in the registrar by this chapter, he, or any officer,
employee, or agent of the United States authorized in writing by him, shall
at all reasonable times, for the purpose of examination, have access to and
the right to copy any book, account, record, paper, or correspondence
relating to the business or affairs of a China Trade Act corporation. 15
U.S.C. §155(d).

Any person who upon demand
refuses the registrar, or any duly authorized officer, employee, or agent,
such access or opportunity to copy, or hinders, obstructs, or resists him in
the exercise of such righ t, shall be liable to a penalty of not more than
$5,000 for each such offense. Such penalty shall be recoverable in a civil
suit brought in the name of the United States. 15 U.S.C. §155(d).

Section 490A of the Higher
Education Act of 1965(HEA), Pub. L. 89­329, as amended by §490B of Pub. L.
105­244, the Higher Education Amendments of 1998, codified at 20 U.S.C.
§1097a. There are no regulations
implementing this authority.

Education Department may by
this authority require any person to produce documents and records pertaining
to participation in the student financial assistance programs authorized
under Title IV of the HEA. 20 U.S.C. §1097a(a). These programs include the
Pell Grant, Supplemental Educational Opportunity Grant, College Work Study,
Perkins Loan, Federal Family Education Loan, and Direct Loan Programs. 20
U.S.C. 1070­1099c-2, 42 U.S.C. 2751­2756b.

Education Department is to
request the attorney general to seek enforcement of the subpoena in federal
district court. 20 U.S.C. 1097a(b).

None specified in statute
itself; nothing in the statute preempts otherwise applicable requirements of
the Right to Financial Privacy Act, and those requirements would remain
applicable where Education Department seeks records from a financial
institution of a customer protected that Act. Information pertaining to an
individual may be protected by virtue of the Privacy Act once records are
produced to Education Department, and in instances in which records sought by
the subpoena may result in the production of information that would be
included in records maintained by Education Department in a system of records
subject to the Privacy Act, an appropriate notice
would be included in the subpoena explaining the authority for the demand,
the purposes for which the information is expected to be used, the routine
uses for that information, and the consequences of failure to provide the information,
as required by 5 U.S.C. § 552a(e)(3),

Authority to issue subpoenas
has been delegated to the Director of the Case Management and Oversight
Division, Schools, Channel, and Office of Student Financial Assistance. The
delegation requires the concurren ce of the Office of General Counsel. No
specific stan dards have been adopted for issuance; in the only instance we
are aware of in which the subpoena was used, the cognizant Edication
Department official was advised why the records were needed, whether the
records sought were related to participating in the student assistan ce
programs, whether the records had been sought by other means, and whether the
records were likely to be subject to privilege.

Collect, assemble, evalu­ate, and analyze
energy information by categorical groupings. 15 U.S.C. § 772(a). Power to require by sub­poena the
attendance and testimony of witnesses, and the production of all infor­mation,
documents, reports, answers, records, accounts, papers, and other data and
documentary evidence which the Admin­istrator is authorized to obtain
pursuant to this section. 15 U.S.C. 772(e)(1).

There is no administra­tive appeal of a sub­poena.
10 CFR § 205.8(b)(6). Any appropriate
United States district court may, in case of contumacy or refusal to obey a
subpoena, issue an order requiring th e recipient of the subpoena to appear
before the Administra­tion and to give testi­mony touching on the matter in
question, or to produce documents. Any
failure to obey such order of the court may be punished by such court as
contempt of court. 15 U.S.C. § 772(e)(2).
Violaters shall be sub­ject to a civil penalty of not more th an $
2,500 for each violation. Willful
violaters shall be fined not more th an $ 5,000 for each violation.

The Administrator has authority not to
disclose some collected informa­tion that would otherwise be available under
FOIA. 15 U.S.C. § 773(b). DOE
regulations contain instructions on how sub­poenas are to be delivered. 10
CFR § 205.8(c).

Request, acquire, and col­lect such energy
informa­tion as determined to be necessary to assist in the formulation of
energy policy or to carry out the purposes of this Act or the Emergency
Petroleum Allocation Act of 1973 [15 U.S.C. §§ 751 et seq.]. The
Federal Energy Ad­ministrator is authorized to sign and issue subpoenas for
the attendance and testimony of witnesses and the production of books,
records, papers, and other documents; to require any person , by General or
special order, to submit answers in writing to interrogator ies, r equests
for reports or for other information; and to admin­ister oaths. 15 U.S.C. §§
796(a), 796(b).

Violaters shall be sub­ject to a civil
penalty of not more th an $ 2,500 for each violation. Willful violaters shall
be fined not more than $ 5,000 for each violation. (15 U.S.C. § 797(b)) In case of a refusal to obey a subpoena or
order of the Federal Energy Administrator, the Administrator may request any
United States district court within the jurisdiction of which any inquiry is
carried on to issue an order requiring compliance therewith; and any failure
to obey the order of the court may be punished by the court as a contempt
thereof. 15 U.S.C. § 796(b)(3).

The Administrator has authority not to
disclose some collected informa­tion that would otherwise be available under
FOIA. (15 U.S.C. § 773(b)) DOE
regulations contain instructions on how subpoenas are to be delivered. 10 CFR § 205.8(c).

The Secretary, or his duly authorized agent
or agents, shall have the same powers and authorities as the Fed­eral Trade
Commission under 15 U.S.C. § 49. That
statute in cludes access to, for the purpose of examina­tion, and the right
to copy any documentary evidence of
any person, partnership, or corporation being in­vestigated or proceeded
against; and the commis­sion shall have power to require by subpoena the
attendance and testimony of witnesses an d the pro­duction of all such docu­mentary
evidence relating to any matter under inves­tigation. Such attendance of wit­nesses and the
production of such documentary evi­dence may be required from any place in
the United States, at any desig­nated place of hearing. And in case of ­disobedience
to a subpoena the commission may invoke the aid of any court of the United
States in requiring the attendance and testimony of witnesses and the
production of documentary evidence. 15 U.S.C. §49. The Hearing Officer shall have all
powers necessary to regulate the conduct of proceedings concerning review of
security clearances, including issuing subpoenas for witnesses to atten d the
hearing or for the production of specific documents or other physical
evidence. Requests for suboenas shall be liberally granted. 10 CFR §710.25.

The litigation of the Department shall be
sub­ject to the supervisi on of the Attorney General pursuant to 28 U.S.C. §§
501 et seq. 42 U.S.C. §§ 7192. The Board [of Contract Appeals] may apply
through the Attorney General to an appropriate United States District Court
for an order requir­ing a person, who has failed to obey a subpoena issued by
the Board, to produce evidence or to give testimony, or both, 41 U.S.C. §
610. 10 CFR § 1023.4.

Certain DOE officials may sign, issue an d
serve subpoenas of persons and documents. 10 CFR §§ 205.8(a), 205.8(b). In all hearings conducted in Security
Clearance cases under 10 CFR Part 710,
the individual is re­sponsible for producing witnesses in his own be­half,
including requesting the issuance of subpoenas, if necessary, or presenting
other proof before the Hearing Officer to support his defense to the allega­tions
contained in the notification letter. 10 CFR § 710.26.

Department of Energy

Atomic Ener gy Act of 1954
(AEA). 42 U.S.C. §§ 2011, et seq., Aug. 30, 1954, ch 1073, Title I, 68 Stat. 921, et seq. 42
U.S.C. § 2201 (subpoena authority).
The word “commission” in the AEA referred to the Atomic Energy Commis­sion
(AEC). The AEC was abolished in 1974
(42 U.S.C. § 5814(a)), and its functions were transferred to the
Administrator of the Energy Research and De­velopment Administration (ERDA)
and certain other agencies. ERDA was
abolished and all its functions were trans­ferred to and all its fun c­tions
were transferred to DOE by Act Aug. 4, 1977, P.L. 95-91, Title III, § 301(a),
Title III, § 301(a), Title VII, §§ 703, and 707, 91 Stat. 577, 606-607, which
appear as 42 U.S.C. §§ 7151(a), 7293, and 7297, respectively.

The Commission is auth o­rized to make such
studies and investigations, obtain such information, and hold such meetings
or hearings as it may deem necessary or proper to assist in exer­cising any
authority pro­vided in this Act, or in the administration or enforce­ment of
this Act or any regulations or orders issued thereunder. For such pur­poses the Commission is
authorized by subpoena to require any person to appear and testify, or to
appear and produce docu­ments, or both, at any designated place. 42 U.S.C. §
2201(c). The Hearing Officer shall
have all powers necessary to regulate the con duct of proceedings concerning
review of security clear­ances, including issuing subpoenas for witnesses to
atten d the hearing or for the
production of specific documents or other physi­cal evidence. Requests for subpoenas shall be liberally
granted. (10 CFR § 710.25)

The Board [of Contract Appeals] may apply
through the Attorney General to an appropriate United States District Court
for an order requir­ing a person, who has failed to obey a subpoena issued by
the Board, to produce evidence or to give testimony, or both, 41 U.S.C. §
610. 10 CFR § 1023.4.

Certain DOE officials may sign, issue an d
serve subpoenas of persons and documents. 10 CFR §§ 205.8(a), 205.8(b). In all hearings conducted in Security
Clearance cases under 10 CFR Part 710, the individual is re­sponsible for
producing witnesses in his own be­half, including requesting the issuance of
subpoenas, if necessary, or presenting other proof before the Hearing Officer
to support his defense to the allega­tions contained in the notification
letter. 10 CFR § 710.26.

Any member of the Com­mission, or any
officer designated by it, is em­powered
to subpoena witnesses, compel their attendance, take evidence, and require
the production of any books, papers, cor­respondence, memoranda, contr acts,
agreement s, or other records which the Commission finds relevant or material
to the inquiry. 15 U.S.C. § 717m.

Any appropriate United States district
court may, in case of contumacy or
refusal to obey a subpoena, issue an order requiring th e recipient of the
subpoena to appear before th e Commission and to give testimony touching on
the matter in question, or to produce documents. Any failure to obey such order of the court
may be punished by such court as contempt of court. 15 U.S.C. § 717m(d).

DOE regulations contain instructions on how
subpoenas are to be delivered.
10 CFR § 205.8(c).

The Secretary may pre­scribe such
procedures as deemed necessary or de­sirable for the exer cise of the
authority delegat ed by E.O. 10485.
Further, the Secretary has authority to issue subpoe­nas under the DOE
Organ­ization Act (P.L. 95-91).

Any appropriate United States district
court or certain other Federal courts may enjoin violations and enforce
compliance with the Federal Power Act or any rule, regulation, or order
thereunder. A court may also gr ant a permanent or tempor ary injunction or
decree or restraining order. 16 U.S.C. 825m.

DOE regulations contain instructions on how
sub­poenas are to be delivered. 10 CFR § 205.8(c).

The Inspector General is auth orized to
requir e by subpoena the production of all information, documents, reports,
answers, records, accounts, papers, and other data and documentary evi­dence
necessary in the performance of the func­tions assigned by this Act, which
subpoena, in the case of contumacy or refusal to obey, shall be enforceable
by order of any appropriate United States
district court: Provided,
That procedures other than subpoenas shall be used by the Inspector General
to obtain documents and information from Federal Agencies. §6(a)(4).

United States district court, pursuant to
section 6(a)(4).

Notification, Privacy and Right to
Financial Privacy Act procedures are consistent with Inspector General
Directive, IG-916, dated, June 24, 1986.

The Inspector General procedures for
issuing subpoenas are contained in IG Directive, IG-916.

The Secretary or his dele­gate may sign and
issue subpoenas for the attend­ance and testimony of wit­nesses and the
production of books, records, papers, and other documents. 15 U.S.C. §
3364(a)(1)(A).

The appropriate United States district
court may, upon petition of the Attorney General at the request of the
Secretary, in the case of refusal to obey a subpoena or order, issue an order
requiring compliance therewith. Any failure to obey an order of the court may
be punished by the court as a contempt th ereof. 15 U.S.C. § (a)(2). It shall be unlawful for any person to
violate any provision of th is Act or any rule or order under the NGPA. 15
U.S.C. § 3414(a). Any appropriate
United States district court or certain other Federal courts may enjoin
violations and enforce compliance with the NGPA or any rule, regulation, or
order there- thereunder. Knowing violators (civil violations) may be assessed
up to $ 5,000 for any one violation, except
that violators of § 302 [15 U.S.C. § 3362] may be assessed up to $ 25,000.
Criminal penalties are also provided. 15 U.S.C. §§ 3414(b), 3414(c).

DOE regulations contain instructions on how
sub­poenas are to be delivered. 10 CFR § 205.8(c).

The Defense Pr oduction Act
of 1950 (DPA). Sept. 8, 1950, ch 932, Title VII, § 705, 64 Stat. 816. 50
U.S.C. Appx 2061 et seq. 10 CFR § 205.8
Ex. Or. No. 11790 of June 25, 1974, § 4, 39 Fed. Reg. 23185; Ex. Or.
No. 12038 of Feb. 3, 1978, 43 Fed. Reg. 4957, located at 15 U.S.C. § 761
note, provided that the Secretary of Energy is authorized to exercise the
authority vested in the President by this section as it relates to the
production, conservation, use, control, distribution, and allocation of
energy, without approval, ratification, or other action of the Pr esident or
any other official of the executive branch of the ­Government,
notwithstanding the provisions of Ex. Or. No.
12919, 59 FR 29525 (June 7, 1994). Ex
Order 12919, in section 902, also delegates to the Secretary of Energy the
subpoena power with respect to section 101 of the DPA.

While this Act is in effect and for a per
iod of two years thereafter, the Secre­tary may subpoena such information or
make such inspection of the books, records, and other writings, premises, or
proper ty of, and take the sworn testi­mony of any person, as may be
necessary or appr o­priate, in his discretion, to the enforcement or the
administration of the DPA and the regulations or orders issued thereunder.
(50 U.S.C. Appx § 2155(a))

In case of contumacy by, or refusal to obey
a subpoena served upon, any person, the distr ict court of the United States
for any district in which such person is found or resides or transacts
business, upon application by the Presi­dent, shall have jurisdic­tion to
issue an order r e­quiring such person to appear and give testimony or to
appear and produce documents, or both; and any failure to obey such order of
the court may be punished by such court as a contempt th ereof. (50 U.S.C.
Appx § 2155(a)) Willful performance of
any act prohibited or willful failure to perform any act required by the DPA,
or any rule, regula­tion, or order thereunder, shall upon conviction be
subject to a fine of not more than $10,000 or impr isonm ent for not more
than one year or
both. 50 U.S.C. Appx §
2155(c).

DOE regulations contain instructions on how
sub­poenas are to be delivered. (10 CFR § 205.8(c))

The production of a per­son’s books,
records, or other documentary evi­dence shall not be required at any place
other than the place where such person usually keeps them, if, prior to the return
date specified in the regulations, subpoena, or other document issued with
respect thereto, such person furnishes a true copy of such books, records, or
other documentar y evidence (certified by such person under oath to be a true
and correct copy) or enter s into a stipulation with the Secretary as to the
information contained in such books, records, or other documentary evi­dence.
(50 U.S.C. Appx § 2155(b)) Certain DOE officials may sign, issue an d serve
subpoenas of persons and documents. 10 CFR §§ 205.8(a), 205.8(b).

Department of Energy†

42 U.S.C. § 13263

Authority of the Secretary or
designee to require the attendance and testimony of witnesses and the
production of books, papers, correspondence, and other documentary items in
carrying out various provisions related to alternative fuels

Department of Energy & Department of the Interior†

42 U.S.C. § 6381

Energy database and energy
information

Department of Health and Human
Services

Department of Health and Human Services Office of the Inspector General

Inspector General Act, Public
Law 95-452, Appendix (the same auth ority possessed by other Inspectors
General).

Administrative subpoena
authority, generally recognized as limited to subpoena duces tecum (statutory
language: “[Each Inspector General...is auth orized... ] to require by
subpoena the production of all information, documents, reports, answer,
records, accounts, papers, and other data and documentary evidence necessary
in the performance of the functions assigned by this
Act, which subpoena, in the case of contumacy or refusal to obey, shall
enforceable by order of any appropriate United States district court:
provided, that procedures other than subpoenas shall be used by the Inspector
General to obtain information from Federal agencies.”).

In the event of refusal to
obey, court order obtain ed through petition to enforce filed in the
appropriate U.S. District Court.

None specific to the
Inspector General Act; statutory notification requirements followed for
Inspector General subpoenas issued pursuant to the Right of Financial Privacy
Act.

OIG has established within
OIG various policies and procedures regarding subpoena request and issuance.

Department of Health and Human Services Office of the General Counsel Food & Drug
Administration Office of the Administrative Law Judge Office of th e
Inspector General

Food, Drug, and Cosmetic Act
§ 303(f), 21 U.S.C. § 333(f).

In a hearing to assess a
civil m oney penalty for violations with respect to adulterated food, the
presiding officer may authorize a party to obtain discovery from other
persons and may issue a subpoena to compel testimony or production of
documents from any person. 21 U.S.C. § 333(f)(2)(C) (incorporating by
reference 21 U.S.C. § 346a(g)(B)). In the course of any investigation or
hearing with respect to civil money penalties for violations with respect to
devices, or the introduction into intersta te commerce of adulterated food,
the Secretary may issue subpoenas requiring the attendance and testimony of
witnesses and the production of documents. 21 U.S.C. § 333(f)(3).

In the event of refusal to
obey a subpoena in a hearing to assess civil money pen alties for violations
with respect to adulterated food, court order obtained through petition to
enforce filed in the appropriate U.S. District Court. 21 U.S.C. §
333(f)(2)(C) (incorporatin g by reference 21 U.S.C. § 346a(g)(B)).

The presiding officer in a
hearing to assess civil money pen alties for violations with respect to
adulterated food is governed by the Federal Rules of Civil Procedure. 21
U.S.C. § 333(f)(2)(C) (incorporatin g by reference 21 U.S.C. § 346a(g)(B)).

Department of Health and Human Services Office of the General Counsel Food & Drug
Administration Office of the Administrative Law Judge Office of th e
Inspector General

Food, Drug, and Cosmetic Act
§ 306(i), 21 U.S.C. § 335a(i).

In the course of any investigation
or hearing with respect to debarment, tempor ary den ial of approval, or
suspension of any corporation, partner ship, associ ation , or individual,
the Secretary may issue subpoenas requiring the attendance and testimony of
witnesses and the production of evidence regarding the matter under
investigation. 21 U.S.C. § 335a(i).

Department of Health and Human Services Office of the
General Counsel Food & Drug
Administration Office of the Administrative Law Judge Office of the Inspector
General

In the course of any
investigation or hearing with respect to the potential imposition of civil
money penalties for, among other things, false statements,
misrepresentations, the payment of bribes or illegal gratuities in connection
with an abbreviated drug application, the Secretary can issue subpoenas
requiring the attendance and testimony of witnesses and the production of
evidence regarding the matter under investigation. 21 U.S.C. § 335b(b)(1)(A).

Department of Health and Human Services

Office of the General Counsel
Food & Drug Administration Office of the Administrative Law Judge Office
of the Inspector General

Food, Drug and Cosmetic Act §
308(b), 21 U.S.C. § 335c(b).

In the course of any
investigation or hearing with respect to the withdrawal of approval of an abbreviated drug applicati
on as a result of, among other things, bribery, payment of illegal
gratuities, or an applicant’s demonstrated inability to produce the drug for
which the application has been submitted, the Secretary can issue subpoenas
requiring the attendance and testimony of witnesses and the production of
evidence regarding the matter under investigation. 21 U.S.C. § 335c(b).

Department of Health and Human Services Office of the General Counsel Food & Drug
Administration Office of the Administrative Law Judge

In connection with hearings
with respect to the imposition of civil money penalties, the presiding
officer has the authority to issue subpoenas requiring the attendance and
testimony of witnesses and the production of evidence relating to the matter
under investigation. 21 CFR § 17.19(b)(5).

The presiding officer can
sanction a person, including a party or its counsel, for failure to comply
with a subpoena by (1) the employment of an inference in favor of the person
requesting the information; (2) prohibiting th e party not complying with the
subpoena from introducing evidence, or relying on testimony, regarding the
information sought; and (3) striking pleadin gs of the noncomplying party. 21
CFR § 17.35(c).

A party to the hearing is
required to request documents at least 60 days prior to the hearing. 21 CFR §
17.23. A party wishing to procure the
attendance and testimony of an individual at a hearing (and the production of
documents at the hearing) is required to request that the presiding officer
issue a subpoena at least 20 days prior to the hearing. 21 CFR § 17.27(a) -
(c). A party or person to whom a subpoena is addressed who believes that the
subpoena is unreasonable, oppressive, excessive in scope, etc., can file a
motion to quash the subpoena within 10 days of the subpoena. 21 CFR § 17.27(f). A party or
prospective witness may file a mot ion for a protective order with respect to
discovery sought by a party or with respect to a hearing, in order to limit
the availability or disclosure of evidence. 21 CFR § 17.28.

Department of Health and Human Services* Office of the General Counsel Department of Health
and Human Services Food & Drug Administration Office of the
Administrative Law Judge

In holding a formal hearing
with respect to th e decision of the Division of Mammography Quality and
Radiation Programs (DMQRP) following its reconsideration of an accreditation
body’s adverse accreditation or reaccreditation decision that precludes
certification or recertification of a mammography facility, an administrative
law judge may issue subpoenas upon his own motion or at the request of a
party. 21 CFR § 900.15(d)(4) (incorporating by reference 42 CFR Part 498,
Subpart D); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 21 CFR § 900.15(d)(4) (incorporatin g
by reference 42 CFR Part 498, Subpart D); 42 CFR § 498.58(b). The r equest
must identify the witnesses or documents to be produced and specify the
pertinent facts that the party expects to establish by the witnesses or
documents, and why those facts could not be established without the use of a
subpoena. 21 CFR § 900.15(d)(4)
(incorporatin g by reference 42 CFR Part 498, Subpart D); 42 CFR § 498.58(d).

The subpoena must be
reasonably necessary for the full presentation of the case. 21 CFR §
900.15(d)(4) (incorporatin g by reference 42 CFR Part 498, Subpart D); 42 CFR
§ 498.58(a).

Department of Health and Human Services Office
of the General Counsel Depar tment of the Interior Interior Board of Indian
Appeals Interior Board of Contract Appeals

With respect to hearings
before an ALJ on appeals of, among other things, denials of certain contracts
and refusals to waive certain regulations, etc. (listed in 25 CFR § 900.150),
with respect to the Indian Self-Determination and Education Act, Indian
tribes, tribal organizations, and the government agency all have the righ t
to compel the presence of witnesses or the production of documen ts or both
by subpoena at h earings or depositions. 25 CFR § 900.164.

The Department is in the
process of developing standards and procedures for the issuance of
administrative subpoenas under the Administrative Simplification provisions
of HIPAA. (No covered entity is required to comply with the regulations
adopted under the Admin istrative Simplification provisions of HIPAA until
2003 at the earliest.)

Department of Health and Human Services Office of the General Counsel Office of the
Inspector General

In any hearing,
investigation, or other proceeding relating to grants to States for medical
assistance programs, the Secretary has the authority to issue subpoenas
requiring the attendance and testimony of witnesses and the production of any
evidence that relates to any matter under investi gation or in question. 42
U.S.C. § 1396q (incorporatin g by reference Social Security Act § 205(d), 42
U.S.C. § 405(d)).

In the event of refusal to
obey, court order obtain ed through petition to enforce filed in the
appropriate U.S. District Court. 42 U.S.C. § 1396q (incorporating by
reference Social Security Act § 205(e), 42 U.S.C. § 405(e)).

The Provider Reimbursement
Review Board has the authority to issue subpoenas requiring the attendance and testimony of
witnesses and/or the production of evidence relating to any matter at issue
in Board hearings on intermediary determinations (as defined in 42 CFR §
405.1801(a)(1)) with respect to payments to providers and hospitals in the
Medicare Program where the amount in controversy equals or exceeds $10,000.
42 U.S.C. § 1395oo(e) (incorporating by reference 42 U.S.C. § 405(d); 42 CFR
§§ 405.1857, 405.1835(a).

In the event of refusal to
obey, court order obtain ed through petition to enforce filed in the
appropriate U.S. District Court. 42 U.S.C. 1395oo(e) (incorporating by
reference 42 U.S.C. § 405(e)).

A party wishing to obtain the
issuan ce of a subpoena shall file a written request at least 10 days before
the hearing. 42 CFR § 405.1857. The
written request must state the pertinent facts which the party expects to
establish by the witnesses or documents and wheth er such facts could be established by other means. Id.

The Board may issue a
subpoena where reasonably necessary for the full presentation of a party’s
case. 42 CFR § 405.1857.

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal of the termination of Medicare coverage of a supplier’s ESRD
services because the supplier no longer meets the conditions for coverage of
its services, an administrative law judge may issue subpoenas upon his own
motion or at the request of a party. 42 CFR § 405.2182 (incorporating by
reference 42 CFR Part 498); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 405.2182 (incorporatin g by
reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR § 405.2182
(incorporatin g by reference 42 CFR Part 498); 42 CFR § 498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal of the Secretary’s decision n ot to certify a rural health clinic
or his refusal to enter into or renew an agreement with a rural health
clinic, an administrative law judge may issue subpoenas upon his own motion
or at the request of a party. 42 CFR § 405.2402(f) (incorporating by
reference 42 CFR Part 498); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 405.2402(f) (incorporatin g
by reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR § 405.
2402(f) (incorporatin g by reference 42 CFR Part 498); 42 CFR § 498.58(a).

Department of Health and Human Services* Office of the General Counsel Department of Health and
Human Services Departmental Appeals Board

In a hearing with respect to
an appeal by a rural health clinic of the termination of an agreement between
CMS and the rural health clinic, an administrative law judge may issue
subpoenas upon his own motion or at the request of a party. 42 CFR §
405.2404(b)(3) (incorporating by reference 42 CFR Part 498); 42 CFR §
498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 405.2404(b)(3) (incorporatin
g by reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
405.2404(b)(3) (incorporatin g by reference 42 CFR Part 498); 42 CFR §
498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal of the failure of CMS to enter into an agreement with an entity
with respect to federally qualified health service centers, an administrative
law judge may issue subpoenas upon his own motion or at the request of a
party. 42 CFR § 405.2430(d) (incorporating by reference 42 CFR Part 498); 42
CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 405.2430(d) (incorporatin g
by reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
405.2430(d) (incorporatin g by reference 42 CFR Part 498); 42 CFR §
498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal of the termination by CMS of an agreement with a federally
qualified health center, an administrative law judge may issue subpoenas upon
his own motion or at the request of a party. 42 CFR § 405.2436(c)(3)
(incorporating by reference 42 CFR Part 498); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 405.2436(c)(3) (incorporatin
g by reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
405.2436(c)(3) (incorporatin g by reference 42 CFR Part 498); 42 CFR §
498.58(a).

Department of Health and Human Services Office of the General Counsel Departmental Appeals Board

In th e appeal/review of a
determination by CMS that a group health plan does not conform to the
requirements of 42 U.S.C. § 1395y(b) with respect to Medicare as a secondary
payer, the hearing officer may issue – on his own motion or upon the request
of any party – subpoenas for the attendance and testimony of witnesses and/or
the production of documents relating to matters at issue. 42 CFR §
411.121(f)(1).

In the event of refusal to
obey, court order obtain ed through petition to enforce filed in the
appropriate U.S. District Court. 42 U.S.C. § 1395y(b)(3)(C), (5)(C)(ii),
(6)(B) (incorporatin g by reference 42 U.S.C. § 1320a-7a(j), incorporating by
reference 42 U.S.C. § 405(d)&(e)).

A party wishing to obtain a
subpoena must file with the hearing officer a written request for a subpoena
at least 10 days before the hearing. 42 CFR § 411.121(f)(2). The
written request must identify the witnesses or documen ts to be produced,
identifying the pertinen t facts to be established by the testimony or
documents sought. 42 CFR § 411.121(f)(3). The subpoenas are issued at the hearing officer’s discretion. 42 CFR §
411.121(f)(4).

The hearing officer may issue
subpoenas if th ey are reasonably necessary for full presentation of the
case. 42 CFR § 411.121(f).

In review of the
redesignation of a hospital – from a rural area to urban area, from one rural
area to another rural area, and from one urban area to another urban area –
for purposes of using the other area’s standardized amount for inpatient
operating costs, wage index value, or both – the Medicare Geogra phic
Classification Review Board may issue subpoenas – on its own motion or at the
request of a party – for th e attendance and testimony of witnesses and/or pr
oduction of documents relevant and material to an y matter of issue. 42 CFR §
412.268(a).

In event of refusal to obey,
court order obtain ed through petition to enforce filed in the appropriate
U.S. District Court. 42 U.S.C. § 1395ww(d)(10)(G)(ii) (incorporatin g by
reference 42 U.S.C. § 405(d) & (e)).

A party must issue a
predecision request for information or data. 42 CFR § 412.268(a). Only when this request has failed to
produce the necessary evidence, can the party submit a written request to the
Medicare Geogra phic Classification Review Board for issuance of a subpoena
for attendance and testimony of witnesses or production of documents. 42 CFR
§ 412.268(a). The r equest must identify the individual or documen ts that ar
e to be produced and must state the pertinent facts that the party expects to
establish by the requested witnesses or documents, and whether these facts could be established by other evidenced without the use of a subpoena. 42 CFR § 412.268(b).

The Board may issue subpoenas
if they are reasonably necessary for full presentation of the case, and only
after a predecision request for information or data has failed to produce the
necessary evidence. 42 CFR §
412.268(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal by an ambulatory surgical center (“ASC”) of a decision by CMS
refusing to enter into an agreement with the ASC or terminating such an
agreement, an administrative law judge may issue subpoenas upon his own
motion or at the request of a party. 42 CFR § 416.26(f) (incorporating by
reference 42 CFR Part 498); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 416.26(f) (incorporatin g by
reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
416.26(f) (incorporatin g by reference 42 CFR Part 498); 42 CFR § 498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal by an ambulatory surgical center (“ASC”) of a decision by CMS
terminating an agreement with the ASC, an administrative law judge may issue
subpoenas upon his own motion or at the request of a party. 42 CFR §
416.35(b)(3) (incorporating by reference 42 CFR Part 498); 42 CFR §
498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 416.35(b)(3) (incorporatin g
by reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
416.35(b)(3) (incorporatin g by reference 42 CFR Part 498); 42 CFR §
498.58(a).

The Provider Reimbursement
Review Board has the authority to issue subpoenas requiring the attendance and testimony of
witnesses and/or the production of evidence relating to any
matter at issue in hearings with respect to payments to hospices (with
respect to amounts in controversy that exceed $10,000) under the Medicare
Program. 42 CFR § 418.311 (incorporating by reference 42 CFR Part 405,
Subpart R); 42 CFR § 405.1857.

In the event of refusal to
obey, court order obtain ed through petition to enforce filed in the
appropriate U.S. District Court. 42 U.S.C. §§ 1395y, 1395oo(e) (both incorporating by reference
42 U.S.C. § 405(e)).

A party wishing to obtain the
issuan ce of a subpoena shall file a written request at least 10 days before
the hearing. 42 CFR § 418.311 (incorporating by reference 42 CFR Part 405,
Subpart R); 42 CFR § 405.1857. The
written request must state the pertinent facts which the party expects to
establish by the witnesses or documents an d whether such facts could be established by other means. Id.

The Board may issue a
subpoena where reasonably necessary for the full presentation of a party’s
case. 42 CFR § 418.311 (incorporating by reference 42 CFR Part 405, Subpart R); 42 CFR §
405.1857.

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal by a provider of a decision by CMS terminating the provider agreement
for failure to comply with the disclosure of information requirements set
forth in 42 CFR Part 420 Subpart C, an administrative law judge may issue
subpoenas upon his own motion or at the request of a party. 42 CFR § 420.3(a)
(incorporating by reference 42 CFR Part 498); 42 CFR 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 420.3(a) (incorporatin g by
reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR § 420.3(a)
(incorporatin g by reference 42 CFR Part 498); 42 CFR § 498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal by a nonparticipating hospital that pr ovides emergency services of
a determination by CMS that the hospital does not qualify to claim reimbursement,
an administrative law judge may issue subpoenas upon his own motion or at the
request of a party. 42 CFR § 424.104(d) (incorporating by reference 42 CFR
Part 498); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 424.104(d) (incorporatin g by
reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
424.104(d) (incorporatin g by reference 42 CFR Part 498); 42 CFR § 498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal by a nursing facility (NF) of (1) a determination by a State,
denying or terminating participation in Medicaid and the basis of the
determination is also a basis for denial or termination of the NF’s
participation in Medicare (in which the NF is participating or seeking to
participate), or (2) a determination by CMS that the NF is not in substantial
compliance, terminating the NF’s Medicaid provider agreement or imposing
alternative remedies, an administrative law judge may issue subpoenas upon
his own motion or at the request of a party. 42 CFR § 431.153(g)(1) & (h)
(incorporating by reference 42 CFR Part 498); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 431.153(g)(1) & (h)
(incorporatin g by reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
431.153(g)(1) & (h) (incorporatin g by reference 42 CFR Part 498); 42 CFR
§ 498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal by an entity of a determination by CMS, denying or terminating the
provider’s participation in the Medicare program as a comprehensive
outpatient rehabilitation facility (“CORF”), an administrative law judge may
issue subpoenas upon his own motion or at the request of a party. 42 CFR §
485. 74 (in corporatin g by reference 42 CFR Part 498); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 485.74 (incorporatin g by
reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR § 485.74
(incorporatin g by reference 42 CFR Part 498); 42 CFR § 498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal by an organization of a determination by CMS, denying the
organization’s application to be the designated organ procuremen t
organization (“OPO”) for its service area, an administrative law judge may
issue subpoenas upon his own motion or at the request of a party. 42 CFR §
486.316(b) (incorporating by reference 42 CFR Part 498); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 486.316(b) (incorporatin g by
reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR § 486.316(b)
(incorporatin g by reference 42 CFR Part 498); 42 CFR § 498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal by an organ procuremen t organization (“OPO”) of a determination by
CMS, terminating an agreement, an administrative law judge may issue
subpoenas upon his own motion or at the request of a party. 42 CFR §
486.325(c) (incorporating by reference 42 CFR Part 498); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 486.325(c) (incorporatin g by
reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
486.325(c) (incorporatin g by reference 42 CFR Part 498); 42 CFR § 498.58(a).

Department of Health and Human Services*
Office of the General Counsel
Departmental Appeals Board

In a hearing with respect to
an appeal by an institution or agency of a determination by CMS (1) that it
does not qualify for participation or coverage
because it is not in compliance with the conditions of participation or
conditions of coverage, or (2) terminating a provider’s agreement for that
reason, an administrative law judge may issue subpoenas upon his own motion
or at the request of a party. 42 CFR § 488.24(c) (incorporating by reference
42 CFR Part 498); 42 CFR § 498.58(a).

In event of refusal to obey,
court order obtain ed through petition to enforce filed in the appropriate
U.S. District Court. Social Security Act §
1128, 42 U.S.C. § 1320a-7 (incorporating by reference Social Security Act §
205, 42 U.S.C. § 405).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42
CFR § 488.24(c) (incorporatin g by reference 42 CFR Part 498); 42 CFR §
498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
488.24(c) (incorporatin g by reference 42 CFR Part 498);
42 CFR § 498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal by certain providers (State-operated facilities, skilled nursing
facilities (SNFs) and dually participating SNFs, and other facilities subject
to a CMS validation survey or CMS review of a State’s findi ngs) of a denial
of participation or certification of noncompliance leading to an enforcement
remedy (including termination of the provider agreement, but except State monitoring),
an administrative law judge may issue subpoenas upon his own motion or at the
request of a party. 42 CFR § 488.330(e)(3) (incorporating by reference 42 CFR
Part 498); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 488.330(e)(3) (incorporatin g
by reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
488.330(e)(3) (incorporatin g by reference 42 CFR Part 498); 42 CFR §
498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to a State’s denial of
participation , termination of provider agreement, or certification of
noncompliance leading to an alternative remedy (except State monitoring) with
respect to a non-State operated Medicaid nursing facility (FN) which h as not
received a CMS validation survey or a CMS review of the State’s findings, an
administrative law judge may issue subpoenas upon his own motion or at the
request of a party. 42 CFR § 488.330(e)(4) (incorporating by reference 42 CFR
Part 431); § 431.153(g)(1) & (h) (incorporating by reference 42 CFR Part
498); 42 CFR § 498.58(a).

A party must file a written request for a
subpoena with the administrative law judge at least 5 days prior to the date
set for the hearing. 42 CFR § 488.330(e)(4) (incorporatin g by reference 42
CFR Part 431); 42 CFR § 431.153(g)(1) & (h) (incorporatin g by reference
42 CFR Part 498); 42 CFR § 498.58(b).

In a hearing with respect to
an appeal of a termination of a provider agreement by CMS pursuant to 42 CFR
§ 489.53(a) or (b), an administrative law judge may issue subpoenas upon his
own motion or at the request of a party. 42 CFR § 489.53(d) (incorporating by
reference 42 CFR Part 498); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 489.53(d) (incorporatin g by
reference 42 CFR Part 498); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
489.53(d) (incorporatin g by reference 42 CFR Part 498); 42 CFR § 498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal of a laboratory dissatisfied with (a) suspen sion, limitation or
revocation of its CLIA certificate by CMS for noncompliance with CLIA
requirements, (b) denial of a CLIA certificate, (c) imposition of alter
native sanctions, or (d) denial or cancellation of a laboratory’s approval to
receive Medicare payments for services, an administrative law judge may issue
subpoenas upon his own motion or at the request of a party. 42 CFR §
493.1844(a)(2) & (b) (incorporating by reference 42 CFR Part 498, Subpart
D); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 493.1844(a)(2) (incorporatin
g by reference 42 CFR Part 498, Subpart D); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
493.1844(a)(2) (incorporatin g by reference 42 CFR Part 498, Subpart D); 42
CFR § 498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In a hearing with respect to
an appeal of a prospective lab dissatisfied with a reconsidered or a revised
reconsidered deter mination regarding denial of a CLIA certificate or of
approval for Medicare payment for services, an administrative law judge may
issue subpoenas upon his own motion or at the request of a party. 42 CFR §
493.1844(a)(2), (e)(1) & (e)(3) (incorporatin g by reference 42 CFR Part
498, Subpart D); 42 CFR § 498.58(a).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 493.1844(a)(2) & (e)(3)
(incorporatin g by reference 42 CFR Part 498, Subpart D); 42 CFR § 498.58(b).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
493.1844(a)(2) & (e)(3) (incorporatin g by reference 42 CFR Part 498,
Subpart D); 42 CFR § 498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In holding a hearing with
respect to an appeal of a determination that affects (1) participation in the Medicare program of a (a) prospective provider, (b) provider, (c)
prospective supplier, (d) supplier, (e) physical therapist in independent
practice, (f) chiropractor, (g) nonparticipating hospital that furnishes
emergency services, or (h) suspended or excluded practitioner, provider, or
supplier, or (2) participation of Intermediate Care Facilities for the
Mentally Retarded (ICFs/MR) or certain Nursing Facilities (NFs) in the
Medicaid progr am, an administrative law judge may issue subpoenas upon his
own motion or at the request of a party. 42 CFR §§ 498.58(a), 498.5(a), (b),
(d), (e), (g)-(k).

A party must file a written
request for a subpoena with the administrative law judge at least 5 days
prior to the date set for the hearing. 42 CFR § 498.58(b). The r equest must identify the witnesses or
documents to be produced and specify the pertinent facts that the party
expects to establish by the witnesses or documents and why those facts could
not be established without the use of a subpoena. 42 CFR § 498.58(d).

The subpoena must be
reasonably necessary for the full presentation of the case. 42 CFR §
498.58(a).

Department of Health and Human Services* Office of the General Counsel Departmental Appeals
Board

In th e course of a
proceeding by which a party appeals an exclusion, civil m oney penalty, a
nd/or assessment, an administrative law judge has the authority to issue
subpoenas requiring the attendance of witnesses at hear ings and the
production of documents at or in relation to hearings. 42 CFR
§ 1005.4.

In the event of refusal to
obey, court order obtain ed through petition to enforce filed in the
appropriate U.S. District Court. 42 CFR § 1005.9(i) (incorporatin g by
reference Social Security Act § 205(e), 42 U.S.C. § 405(e)).

A party seeking a subpoena
for the appearance of a witness at the hearing and/or the production of
documents at or prior to the hearing must file a wr itten motion with the
admin istrative law judge at least 30 days before th e date fixed for the
hearing. 42 CFR § 1005.9(a)-(d). The written motion must specify th e
evidence to be produced and designate the witnesses. 42 CFR § 1005.9(d). The
person to whom the subpoena is directed may file a motion to quash the
subpoena within 10 days of service thereof. 42 CFR § 1005.9(h).

A subpoena for the appearance
and testimony of a witness at a hearing must be reasonably necessary for the
presentation of the moving party’s case. 42 CFR § 1005.9(a).

Department of Health and Human Services Office of the General Counsel Office of th e
Inspector General

With respect to an
investigation into false or otherwise improper claims, actionable under
Social Security Act § 1128A, 42 U.S.C. § 1320a-7a, the Secretary, through the
Inspector General, has the authority to issue subpoenas requiring the
attendance and testimony of witnesses and the production of any evidence that
relates to any matter under investigation or in question. 42 CFR § 1006.1.
The Secretary is authorized to delegate, and has delegated, this authority to
the Inspector General.

In the event of refusal to
obey, court order obtain ed through petition to enforce filed in the
appropriate U.S. District Court where the subpoenaed person is found,
resides, or transacts business. 42 U.S.C. § 1320a-7a(j) (incorporatin g by
reference 42 U.S.C. § 405(e)); 42 CFR §§ 1006.4(f), 1006.5.

Department of Health and Human Services* Office of the General Counsel Office of the
Inspector General Departmental Appeals Board

If the Inspector General, as
the investigating official, concludes that a subpoena pursuant to 31 U.S.C. §
3804(a) is warranted, relating to an investigation into the submission of false,
fictitious, or fraudulen t claims or written statements to the Department, it
has the authority to issue the subpoena. 45 CFR § 79.4(a). In hearings with
respect to program fraud, administrative law judges can issue subpoenas for
the attendance of witnesses and the production of documents at depositions or
at hearings. 45 CFR § 79.18(b)(5).

The subpoena issued by the
Inspector General must identify the authority pursuant to which the subpoena
is issued, and identify the records and documents sought.
42 CFR § 79.4(a)(1). At the hearing stage, the parties must file motions for
discovery before the ALJ at least 15 days before the hearing, which includes
a copy of the requested discovery and a statement of the scope of the
proposed depositions. 45 CFR § 79.21(c) & (d). A party may, within 10
days of service, file an opposition to the motion for discovery or a motion
for a protective order. 45 CFR §
79.21(d)(2).

A party seeking the
attendance and testimony of an individual (and the production of documents by
that witness) can request the ALJ to issue a
subpoena. 45 CFR § 79.23(a) & (b). The motion must be filed at least 15 days prior to the date set for
the hearing. 45 CFR § 79.23(c). A party or the individual to whom the
subpoena is directed may file a motion to quash the subpoena within 10 days
after service. 45 CFR § 79.23(f). The ALJ, pursuant to a motion for a pr
otective order, may make any order necessary to protect a par ty or person
from annoyance, embarrassment, oppression, or undue burden or expense. 45 CFR
§ 79.24(b).

Department of Housing and Urban
Development

US Department of Housing and Urban Development Finance and Regulatory Enforcement

Empowers the Secretary to
invest igate for pur poses of enforcing the Act, prescribing rules or
recommending legislation. Secretary is authorized to issue subpoenas for
testimony and documents in connection with an investigation.

Enforced by action in U.S.
District Court.

Privacy Act, 5 U.S.C. §552a,
as applicable, although; a 30-day minimum time for response is customary.

Discretion of administering
office.

US Department of Housing and Urban Development Finance and Regulatory Enforcement

US Department of Housing and Urban Development Office of Inspector General

Inspector General Act of
1978, 5 U.S.C. App. 3, §6

To require the production of
all information, documents, reports, records, accounts, papers and other data
and documentar y evidence necessary to the performance of the functions of
the Inspector General under the Act.

Enforced by action in U.S.
District Court.

Notification is by service of
a copy of the subpoena on the responding party, and the privacy protections
include the Privacy Act, supra, the Right to Financial Privacy Act, 12 U.S.C.
§3401 et seq., and the Electronic Communications Privacy Act, Pub. L. 99-508,
codified at various sections of the United States Code.

Case law restricts the
authority to issue subpoenas to those issued in furtherance of a lawful
investigation of the inspector general, and which are reasonably relevant to
the inquiry and not over ly broad or burdensome.

Authority for issuance of
subpoenas to same extent as ordered or served in aid of a civil action in the
U.S. District Court for the district in which the investigation is taking
place.

Oder of the appropriate U.S.
District Court.

The provisions of the
F.R.C.P. apply. The protections of
persons subject to subpoenas are set forth at Rule 45(c).

It has been the experien ce
of this office that the Department of Justice believes that it can not
enforce administrative subpoenas that do n ot contain the prescribed language
of Rule 45(c) and (d). This office has consistently required the use of the language of Rule
45(c) and (d) in the administrative subpoenas that it reviews for legal
sufficiency.

US Department of Housing and Urban
Development

42 U.S.C. 3612(c)

same as above

same as above

same as above

same as above

Department of Housing and Urban Development†

12 U.S.C. §4588

for use in connection with
administrative proceedings related to en forcement of housing goals

Department of Housing and Urban Development (The Secretary)†

12 U.S.C. § 2617

In order to investigate any
facts, conditions, practices, or matters that may be deemed necessa ry or
proper to aid in the enforcement of the provisions of the chapter in which
the authority is granted, or to secure information to serve as a basis for recommending
furth er legislation concerning real estate settlement practices, the
Secretary is authorized to subpoena the attendance and testimony of witnesses
and the production of documents.

Department of the Interior

US Department of the Interior Branch of General Legal
Services, Division of General Law Office of Hearings and Appeals

The statutory provisions
referenced above generally grant authority to presiding officers to issue subpoenas in connection with
administrative proceedings, in accordance with the agency’s published
regulations. The Department of the
Interior has published regulations to govern proceedings conducted before
administrative law judges and boards of contract appeals judges. These
regulations, also referenced above, describe the authority of the judges to
issue subpoenas to compel the attendance of witnesses, and to take and cause
depositions to be taken for the purpose of taking testimony. Some regulations also grant subpoena
authority to require persons to produce documents 43 C.F.R. §§ 4.120, 35.18,
35.21.

In contract disputes and in
Indian probate, surface mining, and program fraud cases, the agency can
request that the Attorney General file a petition in U.S. District Court to
enforce a subpoena issued by the presiding officer. In public lands cases,
the wilful refusal to comply with a subpoen a may be punished as a
misdemeanor. (See citations under paragraph 1 above).

None.

The procedural regulations
include General requirements for requesting, issuing, and
service of subpoenas.

US Department of the Interior Division of Land and Water and Division of Parks and
Wildlife U.S. Department of the Interior Office of th e Solicitor

Compr ehensive Environmental
Response, Compensation and Liability Act (CERCLA) section 104(e), Pub. L. No.
96-510, Dec. 11, 1980, 94 Stat 2767, and amendatory acts, codified at 42
U.S.C. 9604(e)(5) (“Information gathering and access, compliance orders”).
Executive Order 12580, 52 Fed. Reg. 2923 (Jan. 23, 1987), Sec. 2(j)(1)
(delegatin g CERCLA section 104(e)(5)(A) compliance order authority to the
Secretary of the In terior, to be exercised with the concurrence of the
Attorney General, with respect to hazardous substance releases where either
the release is on or the sole source of the release is from any facility or
vessel under the jurisdiction, custody, or control of the Department of the
Interior; and Sec. 2(j)(2) (subject to (j)(1), delegating CERCLA section
104(e) authority to the Secretary of the Interior with respect to the same
releases described in (j)(1)). Through Executive Order
12580, supra, Sec. 1(c), and 40 C.F.R. 300.600, the President has designated
the Secretary of the Interior as a Federal tr ustee for natural resources,
pursuant to CERCLA sec. 107(f)(2)(A), 42 U.S.C. 9607(f)(2)(A).

Authority to issue an order
directing compliance with a CERCLA section 104(e) request for inform ation
concerning the identification, nature, and quantity of certain materials, the
natur e or extent of a release or threatened release of a hazardous substance,
or information relating to the ability of a person to pay or to perform a
cleanup.

The Secretary may ask the
Attorney General to commence a civil action to compel compliance with a
request or order issued under CERCLA section 104(e)(5)(A).

The order may be issued after
such notice and opportunity for consultation as is reasonably appropriate
under the circumstances. CERCLA section 104(e)(5)(A).

The Secretary is authorized
to issue orders "only if there is a reasonable basis to believe that ther
e may be a release or threat of release of a hazardous substance or pollutant
or contaminant" from a facility.
CERCLA section 104(e)(1), 42 U.S.C. section 9604(e)(1). In addition,
the authority under section 104(e) may be exercised only for the purposes of
determining the need for response, or choosing or taking any response action
under CERCLA, or otherwise enforcing the provisions of CERCLA. Id.

US Department of the Interior Bureau of Indian Affairs ­through SOL-DIA

Courts of Indian Offenses
Civil procedure: 25 C.F.R. § 11.503 Further, there are regulations which
mandate compulsory production of documen ts/inform ation to the BIA, th ough
they are not technically subpoenas. Under the Indian Trader License Statute
regulations: 25 C.F.R. § 140.22 ­Inspection of traders’ prices - traders
shall on request submit business information as requested

The Court shall follow the
Federal Rules of Civil Procedure in civil cases ­except where such procedures
ar e superseded by Court of Indian Offenses orders or inconsistent rules of
tribal procedure. The Federal Rules of Civil Procedure define subpoena
authority in Rule 45. A subpoena will
serve as a command to produce evidence or to permit inspection or to command
an appear ance, and may be issued jointly or separate. A subpoena to command
atten dance shall issue from the court for the district in which the hearing
or trial is to take place. Similarly,
one commanding production of evidence shall issue from the court for the district where
production or inspection is to occur.

Failure to comply may be
deemed to be contempt of the court from which the subpoena issued.

Compliance with the Federal
Rules of Civil Procedure - Rule 45

Compliance with the Federal
Rules of Civil Procedure - Rule 45.

US Department of the Interior Office of the Solicitor, Division of Mineral
Resources, (for Minerals Management Service)

RSFA Section 1724(d)(2)(B),
gives the DOI the power to issue administrative subpoenas for a lessee of
Federal oil and gas leases “to produce records necessary to determine the
proper reporting and paymen t of an obligation due the Secretary .”

No specific enforcement
authority. However, RSFA amends the
Federal Oil and Gas Management Act (FOGRMA), and FOGRMA provides enforcement
authority as follows: (b) In case of refusal to obey a subpoena served upon
any person under this section, the district court of the United States for
any district in which such person is found, re­sides, or transacts business,
upon application by the Attorney General at the request of the Secretary and
after notice to such person , shall have jurisdiction to issue an order
requiring such person to appear and give testimony before the Secretary or to
appear and produce documents before the Secretary. Any failure to obey such
order of the court may be punished by such court as contempt thereof and
subject to a penalty of up to $10,000 a day. 30 U.S.C. § 1717. To date, we have not litigated whether FOGRMA Section 1717
provides subpoena enforcement authority for RSFA Section 1724(d).

Section 1724(d)(2)(B)(ii)
provides that a subpoena may only be issued [A]fter the Secretary or a
delegated State has in writing requested the records from the lessee or its
designee related to the obligation which is the subject of the subpoena and
has determined that-- (I) the lessee or its designee has failed to respond within
a reasonable period of time to the Secretary's or the applicable delegated
State's written request for such r ecords necessary for an audit,
investigation or other inquiry made in accordance with the Secretary's or
such delegated State's responsibilities under this Act; or (II) the lessee or
its designee has in writing denied the Secretary's or the applicable
delegated State's written request to produce such records in the lessee's or
its design ee's possession or control necessary for an audit, investigation or
other inquiry made in accordance with the Secretary's or such delegated
State's responsibilities under this Act; or (III) the lessee or its designee
has unreasonably delayed in producing records necessary for an audit,
investigation or other inquiry made in accordance with the Secretary's or the
applicable delegated State's responsibilities under this Act after the
Secretary's or delegated State's written request. Section 1724(d)(2)(C)
provides that the Secretary or the applicable delegated State must give the
lessee a reasonable period of time after a written request to provide records
prior to the issuance of any subpoena.

Only applies to Federal Oil
and Gas leases. Section 1724(d)(2)(B)(i) states only the following entities
may issue a subpoena: (1) an Assistant Secretary; (2) an Acting Assistant
Secretary who is a schedule C employee (as defined by section 213.3301 of
title 5, Code of Federal Regulations); (3) the Director or Acting Director of
the respective bureau or agency; or (4) if a State has been delegated
authority pursuant to section 205, the highest State official having ultimate
authority over the collection of royalties from Federal leases within the
State the State. The auth ority may
not be delegated to an y other person. Section 1724(d)(2)(B)(ii) provides
that a subpoena may only be issued during the 7 year limitations period provided
under Section 1724(b).

US Department of the Interior Office of the Solicitor, Division of Mineral
Resources, (for Minerals Management Service)

FOGRMA section 107, 30 U.S.C.
§ 1717, gives the DOI various compulsory auth orities in connection with its
audit and enforcement responsibilities, including the power to issue
administrative subpoenas. Section 107 provides in pertinent part: (a) In
carrying out his duties under this Act the Secretary may conduct any
investigation or other inquiry necessary and appropriate and may conduct,
after notice, any hearing or audit, necessary and appropriate to carrying out
his duties under this Act. In connection with any such hearings, inquiry,
investigation, or audit, the Secretary is also authorized where reasonably
necessary -. . . (3) to require by subpena the attendance and testimony of
witnesses and the production of all books, papers, production and financial
records, documents, matter, and materials, as the Secretary may request;

FOGRMA section 107, 30 U.S.C.
§ 1717, also provides enforcement authority as follows: (b) In case of
refusal to obey a subpoena served upon any person under this
section, the district court of the United States for any district in which
such person is found, re­sides, or transacts business, upon application by
the Attorney General at the request of the Secretary and after notice to such
person , shall have jurisdiction to issue an order requiring such person to
appear and give testimony before the Secretary or to appear and produce
documents before the Secretary. Any failure to obey such order of the court
may be punished by such court as contempt thereof and subject to a penalty of
up to $10,000 a day.

None.

Only applies to Indian Oil
and Gas leases.

US Department of the Interior Office of the Inspector General Depar tment of the
Interior

Inspector General Act of
1978, Public Law No. 95-452, 5 U.S.C. App. 3 [This is the same auth ority
exercised by other Inspectors General].
Specifically, I.G. subpoena authority stems from 5 U.S.C. App. 3 §
6(a)(4). The Department of Justice
authority to prosecute subpoena enforcement actions on behalf of the IGs
stems from DOJ’s charter to conduct litigation in which the U.S. is
interested. That authority appears
generally in 28 U.S.C. Ch. 31 and particularly at 28 U.S.C. §§ 516-519.

Administrative subpoena
authority is generally recognized as limited to subpoena duces tecum. The statutory language provides as follows: Each Inspector General
. . . is authorized . . . to require by subpoena the production of all information,
documents, reports, answers, records, accounts, papers, and other data and
documentar y evidence necessary in the performance of the functions assigned
by this Act, which subpoena, in the case of contumacy or refusal to obey,
shall be enforceable by order of any appropriate United States district
court: Provided, That procedures other than subpoenas shall be used
by the Inspector General to obtain documen ts and infor mation from Federal
agencies.

In the event of refusal to
obey, a court order may be obtained through petition to enforce filed in the
appropriate U.S. district court.

None specific to the
Inspector General Act; statutory notification requirements are followed for
Inspector General subpoenas issued pursuant to the Right to Financial Privacy
Act of 1978, 12 U.S.C. §§ 3413 & 3421.

The Office of the Inspector
General has established within the office various policies and procedures
regarding subpoena request and issuance.

US Department of the Interior Office of the Solicitor, Division of Mineral
Resources .

SMCR gives both the
Secretary, acting through OSM, 30 U.S.C. §§1211(c)(1), and regulatory
authorities, 30 U.SC § 1264(e), the power to issue subpoenas, to compel the
attendance of witnesses and the production of written or printed
material. The Secretary’s regulation
at 43 C.F.R. §§ 4.1121(a)(2) authorizes ALJs to issue administrative
subpoenas for hearings. The
Secretary’s regulation at 4.1121(a)(3) gives ALJs authority to “issue
appropriate orders relating to discovery.” The Secretary is authorized under 30 U.S.C. § 1211(c)(1) to “make
those investigations and inspections necessary to ensure compliance with this
Act.” It is this power that authorizes
the use/issuan ce of investigative subpoenas.

The agency has taken the
position that all subpoenas (investigative, hearing, and deposition
subpoenas) qualify as “orders of the Secretary.” Pursuant to 30 U.S.C. §
1271(c), the Secretary is authorized “ to request the Attorney General to
institute a civil action for relief...whenever [a] permittee or his agent (A)
fails or refuses to comply with any order issued by the Secretary under this
Act... or (E) refuses to furnish any information or report
requested by the Secretary in furtherance of this Act, or (F) refuses to
permit access to, and copying of, such records as the Secretary determines
necessary....” The agency has further taken the position that the “any other
appropriate order” language of Section 1271(c) is broad enough to authorize
enforcement of subpoenas to peple other than permittees or their agents. However, to our knowledge no court has
ruled on this issue.

SMCRA contains no
notification requirements for subpoenas.
However, notification is given via personal service of the subpoena
consistent with Rule 4 of the Federal Rules of Civil Procedure. Discovery
proceedings before th e Office of Hearings and Appeals (“OHA”) are cover ed
by the Secretary’s regulations at 43 C.F.R. §4.1130 through 4.1141. It is our
understanding that documents or testimony subpoenaed are public records, except where
SMCRA provides for confidentiality (such as “trade secret and pricing
information covered at 30 C.F.R. § 870.16(c), which references protection to
the extent authorized by the Privacy Act and the Freedom of Infor mation Act
(5 U.S.C. § 552(a),(b)).

The standards, qualifiers and
procedures for investigative subpoenas are controlled by an OSM directive
dated October 19, 1993 entitled “Subpoenas to Compel the Attendance of
Witnesses, the Production of Written or Printed Material, or Both.” The standards, qualifiers and procedures
for hearing subpoenas are controlled by the ALJ pursuant to 43 C.F.R. §§
4.1121(a)(2) and 4.1121(a)(3).

US Department of the Interior Office of the Solicitor

Compr ehensive Environmental
Response, Compensation and Liability Act (CERCLA) section 122(e)(3)(B), 42
U.S.C. section 9622(e)(3)(B)(“Collectio n of Information”). Executive Order
12580, 52 Fed. Reg. 2923 (Jan. 23, 1987), section 4(b) (delegatin g CERCLA section
122 authority to the Secretary of the Interior with respect to releases or th
reatened releases at facilities not on the National Priorities List (NPL)
where the release is on or the sole source of the release is from any facility under the
jurisdiction, custody or control of the Department of the Interior). The
authority may be exercised only with the con currence of the Attorney
General.

Authority to collect
information necessary or appropriate to prepare non­binding preliminary
allocations of responsibility in CE RLA actions, or for otherwise
implementing section 122 of CERCLA (“Settlements”). Authority to require the attendance and
testimony of witnesses and the production of reports, papers, documents,
answers to questions, and other information that Interior deems necessary.
Section 122(e)(3)(B).

Section 122(e)(3)(B) provides
that “in the event of con tumacy or failure or refusal of any person to obey
any such subpoena,” any district court in which venue is proper shall h ave
jurisdiction to order any such person to comply with such subpoena.

Section 122(e)(3)(A) requires
the development of guidelines for preparing nonbinding prelimin ary allocati
ons of responsibility. The President
may provide a nonbinding preliminary allocations of responsibility, after
completion of the remedial investigation/feasibility study, “when it would
expedite settlements under this section and remedial action.” Section 122(e)(3)(A). The non­binding allocation shall not be
admissible as evidence in any proceeding, and no court
shall have jurisdiction to review the nonbinding allocation of respon
sibility. Section 122(e)(3)(C). Interior can only exercise this authority
with the concurrence of the Attorney General. Executive Order 12580, section
4(b).

Department of the Interior†

16 U.S.C. § 470ff

Archaeological resources
protection

Department of the Interior†

43 U.S.C. § 1619

Alaska native claims
settlement

Department of the Interior†

25 U.S.C. § 3007

Native Americans Graves
Protection and Repatr iation

Department of the Interior†

30 U.S.C. § 1735

Upon written request of any
State, the Secretary is authorized to delegate authority to any State with
respect to all Federal land within the State.

“For the purposes of any
invest igation pr ovided for in this title, the provisions of §§9 and 10
(relating to the attendance of witnesses and the production of books,
records, and documents) of the Federal Trade Commission Act (15 U.S.C. 49,
50) ar e hereby made applicable (without regard to any limitation in such
sections respecting persons, partnerships, banks, or common carriers) to the
jurisdiction, powers, and duties of the Secretary or any officers designated
by him.”

If a subpoena needs
enforcement, it is referred to the Office of the Solicitor who then takes the
appropriate steps to file an action in
the appropriate United States District Court. Generally, the Department
simply seeks to compel the respondent to appear for the deposition or comply
with the request for documents contained in the admin istrative subpoena.

29 CFR Parts 70-71 (general
DOL regulations governing privacy and disclosure of information or materials) In most cases, the subpoenas
will demand production of documents within thirty days. In some
circumstances, the time period is
shorter or longer, e.g., statute of limitations considerations, the
respondent is represented by an attorney who agrees to take service, and sets
a particular date for compliance. PWBA
does not “n otify tar gets” or potential defendants that administrative subpoenas
have been served on others. PWBA abides by the requirements set forth under
the Right to Financial Privacy Act where appropriate, (e.g., not involving th
e assets of an employee benefit plan –an entity not covered by the RFPA) and
by any other privacy or confidentiality requirements that may apply.

The Secreta ry may not
subpoena the books and records of any employee benefit plan more than once in
a 12-month period unless the Secretary has
reason to believe that a violation of ERISA may exist. (29 U.S.C. 1134(b).)
The Secreta ry of Labor has delegated the authority to issue subpoenas to the
Assistant Secretary of Pension and Welfare Benefits. The Assistant Secretary has re-delegated
this authority to the Director of Enforcement and to the Regional Directors
of the Pension and Welfare Benefits Administration (PWBA). PWBA Regional
Directors execute and issue admin istrative subpoenas. They may also re-delegate that authority to
other regional office personnel. The Office of the Solicitor of Labor reviews
all subpoenas, except for accommodation subpoenas. All subpoenas, including accommodation
subpoenas, must be approved by Office of the Solicitor, if someone other than
a Regional Director or Associate Regional Director signs them.
Attorneys with the Office of th e Solicitor either conduct depositions that
are noticed pursuant to a subpoena ad testificandum or assist the
investigators in doing so. Chapter 33 of the PWBA Enforcement Manual sets
forth detailed procedures and instructions for issuing subpoenas
(http://www.dol.gov/dol/p wba/public/programs/oem anual/chap33.htm).

“For the purpose of any hear
ing or investigation provided for in this chapter, the provisions of sections
49 and 50 of title 15 (relating to the attendance of witnesses and the
production of books, papers, and documents), are made applicable to the
jurisdiction, powers, and duties of the Administrator, the Secretary of
Labor, and the industry committees.” 29 U.S.C. 209 “The Administrator or his
designated representatives may investigate and gather data regarding the
wages, hours, and other conditions and practices of employment in any
industry subject to this chapter, and may enter and
inspect such places and such records (and make such transcriptions thereof),
question such employees, and investigate such facts, conditions, practices,
or matters as he may deem necessary or appropriate to determine whether any person
has violated any provision of this chapter, or which may aid in the
enforcement of the provisions of this chapter.” (29 U.S.C. 211)

“And in case of disobedience
to a subpoena the [Secretary/Administrator/ Committees] may invoke the aid of
any court of the United States in requiring the attendance and testimony of
witnesses and the production of documentary evidence. Any of the district
courts ... may, in case of contumacy or refusal to obey a subpoena ... issue an order requiring such person , par
tnership, or corporation to appear before the [Secretary/Administrator/
Committees], or to produce documentary evidence ..., or to give evidence
touching the matter in question; and any
failure to obey such order of the court may be punished by such court as a
contempt thereof..” 15 U.S.C. 49, incorporated into 29 U.S.C. 209.29

CFR Parts 70-71 (general DOL
regulations governing privacy and disclosure of inform ation or materials)
Other privacy/notification requirements, including the Right to Financial
Privacy Act, Trade Secrets Act, or HHS Medical Privacy regulations, may apply
in some cases.

“For the purposes of any
investigation pr ovided for in this section, the Secretary shall have the
subpoena authority provided for un der section 209 of th is title.” [Section 209 refers to the Fa ir Labor
Standards Act, discussed above.] Employers are required to keep certain
records and to disclose them to the Secretary upon her request. 29 C.F.R.
825.500

“And in case of disobedience
to a subpoena the [Secretary/Administrator/ Committees] may invoke the aid of
any court of the United States in requiring the attendance and testimony of
witnesses and the production of documentary evidence. Any of the district
courts ... may, in case of contumacy or refusal to obey a subpoena ... issue an order requiring such person , par
tnership, or corporation to appear before the [Secretary/Administrator/
Committees], or to produce documentary evidence ..., or to give evidence
touching the matter in question; and any failure to obey such
order of the court may be punished by such court as a contempt thereof..” 15
U.S.C. 49, incorporated into 29 U.S.C. 209.

29 CFR Parts 70-71 (general
DOL regulations governing privacy and disclosure of information or materials)
Other privacy/notification requirements, including the Right to Financial
Privacy Act, Trade Secrets Act, or HHS Medical Privacy regulations, may apply
in some cases.

“The Secretary of Labor, on
any matter within his jurisdiction under this subchapter, may -(1) issue
subpoenas for and compel the attendance of witnesses within a radius of 100
miles...(4) require the production of books, papers, documents, and other
evidence. “

5 U.S.C. 8125 states that if
a person "disobeys or resists a la wful order or process in proceedings
under this subchapter before th e Secretary of Labor" the Secretary or
his representative must “certify the facts to the district court having jurisdiction
in the place where he is sitting. The
court must, in a summary manner, hear evidence as to the acts com plained of
and if the evidence warrants, punish the individual in the same manner and to
the same extent as for a contempt committed before the court or commit the
individual on the same conditions as if the forbidden act had occurred with
reference to the process of or in the presence of the court.”

“For the purpose of making
any investigation of any accident or other occurrence relating to health or
safety in a coal or other mine, the Secretary may, after notice, hold
public hearings, and may sign and issue subpoenas for the attendance and
testimony of witnesses and the production or relevant papers, books, and
documents, and administer oaths.” Federal courts have long recognized that
the subpoena power of the Secretary under this and the predecessor Federal
Coal Mine Health and Safety Act of 1969 (P. L. 91-173) is limited to public
hearing settings, United States v. Blue
Diamond Coal Co. 667 F2d 510, 519
(6th Cir. 1981); UMWA v. Martin, 785 F. Supp. 1025,1027 footnote 1 (DDC. 1992).
Thus, it is clear both from the wording of the statute and the court
interpretations that the subpoena power of the Mine Act is limited to
investigatory public hearings being conducted by the Secretary.

“In case of contumacy in
refusal to obey a subpoena served upon any person under this section, the
district court of the United States for any district in which such
person is found or resides or transacts business, upon application by the
United States and after notice to such person, shall have jurisdiction to
issue an order requiring such person to appear and give testimony before the
Secretary to appear and produce documents before the Secretary or both, any
failure to obey such order of the court may be punished by such court as a
contempt thereof.” (30 U.S.C. 813) 29 CFR Parts 70-71 (general DOL
regulations governing privacy and disclosure of information or materials)
Other privacy/notification requirements, including the Right to Financial
Privacy Act, Trade Secrets Act, or HHS Medical Privacy regulations, may apply
in some cases.

No overriding standards or
procedures. Specific procedures ar e
sometimes developed for purposes of specific hearings.

The Act gives the Inspector
General authority to subpoena documents, reports, answers, records, accounts,
papers and other data and documentary evidence necessary to carry out its functions.
It does not provide testimonial subpoena authority. Additionally it provides
that procedures other than subpoenas be used to obtain information and
documents from Federal agencies.

Enforcement is by the
Attorney General, at the request of the Inspector General, in US Distr ict
Court. No specific sanctions.

No notification requirements
in the IG Act. The Right to Financial Privacy Act and certain Medical Privacy
provisions may apply to Inspector General subpoenas. These contain
notification provisions.

Only th e Inspector General
or the Deputy Inspector General at the Depar tment of Labor have authority to
issue subpoenas. OIG has internal procedures relating to issuance of
subpoenas; these are currently undergoing revisi on and are not available. OIG has no regulations or published
procedures.

“For the purpose of any
investigation pr ovided for in this chapter, the provisions of sections 49
and 50 of title 15 (relating to the attendance of witnesses and the
production of books, papers, and documents), are made applicable to the
jurisdiction, powers, and duties of the Secreta ry or any officer s
designated by him.”

Enforcement is by the
Attorney General, at the request of the Secretary of Labor, in US District
Court. 29 U.S.C. 521, incorporating 15 U.S.C. 49.

29 CFR Parts 70-71 (general
DOL regulations governing privacy and disclosure of information or materials)
Other privacy/notification requirements, including the Right to Financial
Privacy Act, Trade Secrets Act, or HHS Medical Privacy regulations, may apply
in some cases.

“The deputy commissioner or
Board shall have power to preserve and enforce order during any such
proceedings; to issue subpoenas for, to administer oaths to, and to compel
the attendance and testimony of witnesses, or the production of books,
papers, documents, and other evidence, or the taking of depositions before
any designated individual competent to administer oaths; to examine
witnesses; and to do all things conformable to law which may be necessary to
enable him [effectively] to discharge the duties of his office.”1 Prior to
1972, hearing authority was vested in the Deputy Commissioner. In 1972, the
LHWCA was amended to provide for the transfer of the hearing authority from
the Deputy Commissioner to the Office of Administrative Law Judges. Pub. L.
No. 92­576, 86 Stat. 1251(1972), 33 U.S.C. § 919(d). As such, an
administrative law judge has all the powers and duties provided to a “deputy
commissioner” under section 27 of the Act. See Percoats v. Marine Terminal
Corp., 15 BRBS 151, 153-154 (1982).
This necessarily includes the auth ority, under section 27(a), to issue subpoenas. In
light of this transfer of authority, the Benefits Review Board, which handles
appeals of Black Lung and Longshore cases, has held that the district
directors do not have the power to issue subpoenas. Main e v. Brady Hamilton
Stevedore Co., 18 BRBS 129 (1986). The Board so ruled, reasoning that the
Deputy Commissioner’s subpoena power, under section 27(a), was an adjunct of
the Deputy Commissioner’s hearing authority. Thus, the Board concluded that when the hearing authority was
transferred to the Office of Administrative Law Judges, so necessarily was
the subpoena power. Id. (The Board did
nevertheless hold in Maine that a party may avail itself of discovery while
the case is pending before the Distr ict Director by applying to the chief
administrative law judge to request a subpoena while the case is pending
before the district director. Id.) The Director, OWCP, however, disagrees
with the Board’s Maine decision, believing that, notwithstanding the transfer
of hearing auth ority to the Office of Administrative Law Judges,
the subpoena power also is a necessary component in the District Director’s
exercise of his investigative authority under section 19 and thus section
27(a)’s subpoena power also continues to reside with the district director.

Section 27(b) of the
Longshore Act, 33 U.S.C. § 927(b), sets
forth the enforcement
mechanisms and sanctions available for those individuals who fail to comply
with a subpoena. Section 27(b) directs
the "deputy commissioner" and the Board to certify the facts to the
district court having jurisdiction in the place he is sitting. The district court will "in a summary
manner hear evidence as to the acts complained of and if the evidence so
warrants, punish such person in the same manner and to the same extent as for
a contempt committed before the court, or commit such person upon the same
conditions as if doing of the forbidden act had occurred with reference to
the process of or in the presence of the court." 33 U.S.C. § 927(b). The
ALJ regulations also provide for san ctions for individuals who do not comply
with subpoenas. 29 C.F.R. §§ 18.6(d)(2), 18.24(d). Under § 18.1 of the
regulations, however, “to the extent that these rul es may be inconsistent
with a rule of special application as provided by statute,
executive order, or regulation, the latter is controlling.” 29 C.F.R. § 18.1. Because § 27(b) of the Act appears to be
such a “rule of special application,” enforcement of subpoenas would appear
to be controlled by the procedures outlined in section 27(b), not those
discussed in sections 18.6(d)(2). The
Board regulations simply repeat the statutory language of § 27(b) in setting
forth the procedures it will follow if any person in proceedings before the
Board disobeys or resists any lawful order or process. 29 C.F.R. § 802.103(b).

29 CFR Parts 70-71 (general
DOL regulations governing privacy and
disclosure of inform ation or
materials) Other privacy/notification requirements, including the Right to
Financial Privacy Act, Trade Secrets Act, or HHS Medical Privacy regulations,
may apply in some cases. No specifi c notification procedures for district
director [deputy commissioner] subpoenas. For ALJ subpoenas: If a party's
written application for a subpoena is submitted three working days or less
before the hearing to which it relates, a subpoena shall issue at the discr
etion of the Chief Administrative Law Judge or presiding administrative law
judge, as appropriate. A motion to quash or limit the subpoena must be filed
within ten days of receipt of a subpoena but no later than the date of the
hear ing. The person against whom the
subpoena is directed may file a motion to quash or limit the subpoena,
setting forth the reasons why the subpoena should be withdrawn or why it should
be limited in scope. A response to the
motion to quash or limit must be filed within ten days of service. The ALJ
must rule on the motion immediately after the response is due and his order
must specify the date, if any, for compliance with the specifications of the
subpoena. Sservice of the subpoena may
be accomplished by certified mail or by any per son who is not less than 18
years of age. A witness, other than a wit ness for the Federal Government,
may not be required to atten d a deposition or hearing unless the mileage an
d witness fee applicable to witnesses in courts of the United States for each
date of attendance is paid in advance of the date of the proceeding. 29
C.F.R. § 18.24. To the extent that any situation is n ot provided for or
controlled by these rules, or by any statute, executive order or regulation,
the Rules of Civil Procedure for the District Courts of the United States
will apply. 29 C.F.R. § 18.1(a).

The Secretary of Labor is
also charged with the administration of a “special fund” under § 44 of the
Act, finan ced by covered employers and insurance carriers, which makes
payments in certain cases including, cases in which an employer is awarded
“special fund” relief because its liability has been augmented by an injured worker’s
pre­existing disability, and cases where compensation awards cannot be
satisfied because of the insolvency of the employer. 33 U.S.C. 944. A separ ate gr ant of subpoena auth ority
is given to the Secretary to administer the special fund. Section 44(c)
provides that “for the purpose of any hear ing or investigation related to
determ inations or the enforcement of the provisions of [§ 44], the
provisions of section 9 and 10 (relating to the
attendance of witnesses and the production of books, paper s, and documents)
of the Federal Trade Commission Act of September 16, 1914, as amended
(U.S.C., title 15, secs. 49 and 50) ar e hereby made applicable to the
jurisdiction, powers, and duties of the Secretary of Labor.” Section 49
provides the authority to issue subpoenas for the atten dance of witnesses or
the submission documentar y evidence from any person, partnership or
corporation being investigated against. 15 U.S.C. § 49. Such auth ority also applies for hear ings
and the takin g of depositions during the course of an investigation. Id.

The aid of any court of the
United States can be invoked in requiring the attendance and testimony of
witnesses and the production of documentary evidence, and individuals,
partnerships or corporation s "may be punished by such court as a
contempt thereof." 15 U.S.C. § 49. Any person who disobeys an order of a
district court to comply with a subpoena will "be punished by a fine of
not less th an $1,000 nor more than $5,000, or by imprisonment for not more
than one year, or by both such fine and imprisonment." 15 U.S.C. § 50.

29 CFR Parts 70-71 (general
DOL regulations governing privacy and disclosure of inform ation or
materials) Other privacy/notification requirements, including the Right to
Financial Privacy Act, Trade Secrets Act, or HHS Medical Privacy regulations,
may apply in some cases.

“Enforcement of chapter
Sections 38 and 39 of this title [Walsh-Healey Act] shall govern the
Secretary's authority to enforce this chapter, make rules, regulations, issue
orders, hold hearings, and make decisions based upon findings of fact, and
take other appropria te action hereunder.”(41 U.S.C. 353(a)) “...The Secretary of Labor or his authorized
representatives shall have power to make investigations and findings as
provided in sections 35 to 45 of this title...” (41 U.S.C. 38, incor porated
by 41 U.S.C. 353(a)) “Upon his own motion or on application of any person
affected by any ruling of any agency of the United States in relation to any
proposal or contract involving any of the provisions of sections 35 to 45 of
this title, an d on complaint of a breach or violation of any representation
or stipulation as provided in said sections, the Secretary of Labor, or an
impartial representative design ated by him, shall have the power to hold
hearings and to issue orders requiring the attendance and testimony of
witnesses and the production of evidence under oath.” (41 U.S.C. 39, incorporated
by 41 U.S.C. 353(a))

“In case of contumacy,
failure, or refusal of any person to obey such an order, any District Court
of the United States or of any Ter ritory or possession within the
jurisdiction of which the inquiry is carr ied on, or within the jurisdiction
of which said person who is guilty of con tumacy, failure, or refusal is
found, or resides or transacts business, upon the application by the
Secretary of Labor or representative design ated by him, shall have
jurisdiction to issue to such person an order requiring such person to appear
before him or representative design ated by him, to produce evidence if, as,
and when so order ed, an d to give testimony relating to the matter under
investigation or in question; and any failure to obey such order of the court
may be punished by said court as a contempt thereof[.]” (41 U.S.C. 39,
incorporated by 41 U.S.C. 353(a))

“The Secretary may issue
subpenas requiring the attendance and testimony of witnesses or the
production of any evidence in connection with such investigations. The Secretary may administer oaths, examine
witnesses, and receive evidence. For
the purpose of any hearing or investigation provided for in this chapter, the
authority contained in sections 49 and 50 of title 15 [Federal Trade
Commission Act], relating to the attendance of witnesses and the production
of books, papers, and documents, shall be available to the Secretary. The Secretary shall conduct investigations
in a manner which protects the confidentiality of any complainant or other party
who provides inform ation to the Secretary in good faith.” 29 U.S.C. 1862(b).
“To carry out this chapter the Secretary, either pursuant to a complaint or
otherwise, sh all, as may be appropriate, investigate, and in connection
therewith , enter and inspect such places (including housing and vehicles)
and such records (and make transcriptions thereof), question such persons and
gather such information to determine compliance with this chapter, or
regulations prescribed under this chapter.” 29 U.S.C. 1862(a).

“And in case of disobedience
to a subpoena the [Secretary] may invoke the aid of any court of the United
States in requiring the attendance and testimony of
witnesses and the production of documentary evidence. Any of the district
courts ... may, in case of contumacy or refusal to obey a subpoena ... issue an order requiring such person , par
tnership, or corporation to appear before th e [Secretary], or to produce
documentary evidence ..., or to give evidence touching the matter in
question; and any failure to obey such order of the court may be punished by
such court as a contempt thereof..”

“In making his inspections
and investigations under this Act the Secretary may require the attendance
and testimony of witnesses and the production of evidence under oath.”

“In case of a contumacy,
failure, or refusal of any person to obey such an order, any district court
of the United States or the United States courts of any territory or
possession, within the jurisdiction of which such person is found, or resides
or transacts business, upon the application by the Secretary, sh all h ave
jurisdiction to issue to such person an order requiring such person to appear
to produce evidence if, as, and when so ordered, an d to give testimony
relating to the matter under investigation or in question, and any failure to
obey such order of the court may be punished by said court as a contempt
thereof.”

The Inspector General is the
"investigating official" and can require the production of material
similar to that which can be obtained under the IG Act ­- that is, records,
data, etc. but not testimony. Under the PFCRA, there is a further limitation
-- the only data which can be subpoenaed is that which is not
otherwise reasonably available to the authority. Additionally the Act
provides authority to the presiding officer of an Administrative hearing to
subpoena documents and testimony.

Enforced by petition of the
Attorney General who can seek an order from the District Court where the person receiving the subpoena resides
or conducts business. A failure to obey the order of the court is contempt.

No specific notification
procedures. Subpoenas for records may
be subject to the n otification provisions of the Right to Financial Privacy
Act and Medical Privacy Acts when they apply.

None

Department of Labor

Trade Act of 1974, P.L.
93-618, 19 U.S.C. 2321, 29 CFR 90.14

The Secretary of Labor may
require by subpoena the attendance of witnesses and the production of
evidence necessary to make a determination whether to certify a worker group
as eligible to apply for assistance under the TAA and NAFTA-TAA programs. 19
U.S.C. 2321(a).

“If a person refuses to obey
a subpena issued under subsection (a) of this section, a United States
district court within the jurisdiction of which the relevant proceeding under
this part is conducted may, upon petition by the Secretary, issue an order
requiring compliance with such subpena.” 19 U.S.C. 2321(b). Enforcement is
through DOJ. No specified sanctions.

Subpoenas under this section
must be served either in person or by certified mail, return receipt
requested, and the compliance date for
the subpoenas must be no less than seven (7) days from the date of service.
In practice, DOL’s Employment and Training Administration’s Office of Trade
Adjustment Assistance (OTAA) uses this subpoena authority to obtain
confidential business data necessary for determining whether a firm, for
whose employees a petition for certification under TAA or NAFTA-TAA has been
filed, has been impacted by imports or has shifted production to Can ada or
Mexico. 29 CFR Part 90, provides for
confidentiality of business data, which would
include any data obtained via a subpoena. Specifically, 29 CFR 90.16(c) and
(f) provide that published notices of affirmative and negative
determinations, respectively, shall exclude confidential business
information, as identified by the certifying officer (who is a staffer in the
ETA Division of Trade Adjustment Assistance). Also, 29 CFR 90.32(b) states
that confidential business information is not available to the public.
Finally, 29 CFR 90.33 addresses confidential business information in detail.
This provision defines confidential business information as trade secrets and
commercial and financial information, which are obtained from a person and
are privileged or confidential, as set forth in 5 U.S.C. 552(b) and 29 CFR
Parts 70-71. Paragraph (b) of 29 CFR 90.33 requires that confidential
business information be clearly identified as such on each page of a document
containing such information. Finally,
paragraph (c) of 29 CFR 90.33 states that the
certifying officer is entitled to refuse to accept certain information as
confidential, but that the supplier is entitled to notice of the refusal and
the right to withdraw the information if the certifying officer makes such a
refusal. Other privacy/notification requirements, including the Right to
Financial Privacy Act, Trade Secrets Act, or HHS Medical Privacy regulations,
may apply in some cases.

In practice, subpoenas are
used only as a last resort, when repeated requests for necessary business
data have been refused or left unanswered by a firm whose data OTAA seeks. Typically,
OTAA precedes the servin g of a subpoena with the delivery to the firm in
question of a “pre-subpoena” letter, warning the firm that a subpoena will be
served if the firm does not provide the necessar y data by a specific date. If the firm continues to refuse to provide
the data or leaves the pre-subpoena letter unanswered, then OTAA serves a
subpoena on the firm. The U.S. Department of Justice seeks enforcement on
behalf of DOL.

“In carrying out any
investigation under this chapter, the Secretary may require by subpoena the
attendance and testimony of witnesses and the production of documents
relating to any matter under investigation.”

Enforcement is by the
Attorney General, at the request of the Secretary of Labor, in US District
Court.

29 CFR Parts 70-71 (general
DOL regulations governing privacy and disclosure of inform ation or
materials) Other privacy/notification requirements, including the Right to
Financial Privacy Act, Trade Secrets Act, or HHS Medical Privacy regulations,
may apply in some cases.

“In carrying out any
investigation under this subsection, the Secretary may require by subpoena
the attendance and testimony of witnesses and
the production of documents relating to any matter under investigation."

Enforcement is by the
Attorney General, at the request of the Secretary of Labor, in US District
Court. 5 U.S.C. 3330a(b)(3)-(4).

29 CFR Parts 70-71 (general
DOL regulations governing privacy and disclosure of inform ation or
materials) Other privacy/notification
requirements, including the Right to Financial Privacy Act, Trade Secrets
Act, or HHS Medical Privacy regulations, may apply in some cases.

“Any arbitration proceedings
under this section shall, to the extent consistent with this title, be
conducted in the same manner, subject to the same limitations, carried out
with the same powers (including subpena power), and enforced in United States
courts as an arbitration proceeding carried out under title 9"

† Denotes supplemental entry derived
from independent research, not submitted by the relevant agency or department

* Denotes
Administrative Law Judge authority (For purposes of this report,
“administrative subpoena” authority has been defined to include all powers,
regardless of name, that Congress has granted to federal agencies to make an
administrative or civil investigatory demand compelling document production or
testimony. Civil compulsory process authorities with provision for judicial
enforcement are included. Grand jury subpoenas, administrative law judge
subpoenas, and investigative authorities requiring judicial approval are not
within the scope of the report; however, descriptions of administrative law
judge subpoenas submitted by individual agencies and entities have been
included as submitted.)

Name of Submitting Agency or Entity

Source and Common Name of Authority
(Including Act Name, P.L. and U.S.C. & CFR cites)

In any case of serious injury, loss of life, or
significant destruction of property at, or related to, a United States
Government mission abroad, and in any case of serious breach of security
involving intelligence activities of a foreign government directed at a U.S.
government mission abroad, in certain circumstances, the Secretary of State
is authorized to convene and Accountability Review Board. The Board is
authorized to issue a subpoena for the attendance and testimony of any person
and the production of documentary of other evidence from any such person if
the Board finds that such a subpoena is necessary in the inter ests of
justice for the development of relevant evidence.

The Board may request the Attorney General’s
assistance in seeking an enforcement order from a U.S. district court.

Specific confidentiality protections are
required under the statute.

Department of Transportation

US Department of Transportation*

14 CFR 302.25, Subpoenas in an oral
evidentiary hearing. Require the attendance of a witness at a hearing or the
production of documentary evidence.

The administrative law judge or the
DOT decision maker considering an application for a subpoena shall issue the
subpoena if the application complies with section 302.25. Any person upon
whom a subpoena is served has seven days to file a motion to quash or modify
the subpoena with the administrative law judge or, in the event that an
administrative law judge has not been assigned or is unavailable, to the DOT
decisionmaker or the Chief Administrative Law Judge for action. If the person
to whom the motion has been addressed has not acted by the return date, such
date shall be stayed pending his or her final action. The DOT decisionmaker
may at any time review, upon his or her own initiative, the ruling of the administrative law judge or Chief Administrative Judge denying a motion to quash. In such cases, the DOT decisionmaker may order that the return date of a subpoena be staye d pendi ng act ion thereon.

Any party may make an application
for subpoena without notice . Any pe
rson who objects to the public disclosure of documents or oral testimony
covered by a subpoena may file a motion requesting confidential treatment
pursuant to [CFR 302.12. Under that rule, requests for confidential treatment
are judged in accordance with the standards of disclosure found in the
Freedom of Information Act (5 U.S.C. section 552). The Right to Financial
Privacy Act may or may not apply. Pursuant to 14 CFR 302.27, any person
appearing as a witness response to a subpoena is entitled to counsel and must
be tendered the same mileage and attendance fees as are paid to witness for such service in the courts of the United States.

An application shall contain a
statement or showing of general relevance and reasonable scope of the
evidence sought that, in the case of evidence, shall describe the documentary
or tangible evidence to be subpoenaed with as much particularity as is
feasible, or, in the case of a witness, the name of the witness and a general
description of the maters concerning which the witness will be asked too
testify. The person considering the application shall issue the subpoena if
the application complies with 14 CFR 302.25.

The subpoena power can be valuable
in obtaining evidence in aviation enforcement proceedings pursuant to 14 CFR
302 Subpart D. The subpoena power is used sparingly.

Require the attendance of a per son
to testify or the pr oduction of documentary evidence.

The Deputy General Counsel, the DOT
decisionmaker, Chief Administrative Law Judge or the administrative law judge
designated to preside at the reception of evidence may issue the subpoena.
The person upon whom an inve stiga tive subpoena is served has seven days to
file a motion to quash or modify the subpoena with the official who issued
the subpoena. If the person to who the motion has been addre ssed has not acted by the return date, such date
shall be stayed pending his or her final action. A subpoena will be quashed
or modified if the evidence whose production is required is not reasonably
relevant to the matter under investigation or the demand made does not
describe with sufficient particularity the information sought, or the
subpoena is unlawful or unduly. The DOT decisionmaker may at any time review,
upon his or her own initiative, the ruling of the administrative law judge or
Chief Administrative Law Judge denying a motion to quash. In such cases, the
DOT decisionmaker may order that the return date of a subpoena be stayed
pending action thereon.

Any issued subpoena shall briefly
advise the person required to testify or to submit documentary evidence of
the purpose of the Investigation and have attached a copy of the order
initiating the investigation. The investigation at which the person apears
shall be attended only by the witness and his or her counsel, the
administrative law jude, and department empoyees concerned with the conduct
of the investigation. Unless DOT detrmines otherwise, all
orders instituting the investig ation whch do not disclose the identify of
the parti cular persons or firms under investigation shall be published in
the Federal Register. Except as otherwise required by law, the remainderof
the record of suh proceedings shall constitute internal DOT documents, which
shall not be available to the general public. The use of such records in
formal hearings subject to 14 CFR Part 302 shall be subject to avia tion
requesting confidential treatments pursuant to 14 CFR 302.12. If no
corrective action is found to be warranted after the completion of the
investigation, all documentary evidence will be returned to the person that produced it. 14 CFR 305.7 requires that witnesses subpoenaed to appear shall be paid attendance and mileage fees a la 14 CFR 302.27.

No set standard, subject to the
general style of reasonableness that request be within the scope of the order
initiating the investigation.

US Department of Transportation

49 U.S.C. 46104, Evidence

The Secretary of Transportation may
subpoena witnesses and records related to a matter involved in a hearing or
investigation from any place in the United States to the designated place of
the hearing or investigation, examine witnesses and receive evidence at a
place the Secretary designates.

If a person disobeys a subpoena,
the Secretary or a party to a proceeding before the Secretary may petition a
court of the United States in the jurisdiction in which the proceeding or
Investgation is conducted to enforce the subpoena. The court may punish a
failure to obey an order of the court to comply with the subpoena as a
contempt of court. The Secretary may designate an employee of the Department
under section 3105 of Title 5 to carry out the powers granted by this action.

“

“

US Department of Transportation

49 U.S.C. 41708, Reports.

The Secretary of Transportation may
require an air carrier or foreign air carrier to file reports with the
Department under oath, to provide specific answers to questions, and to file
agreements between carriers related to transportation.

Order of the Department.

Order issued by the Department and
served on the carrier or person. The carrier or person may file motion
requesting confidential treatment pursuant to 14 CFR 302.12. The Right to
Financial Privacy Act may or may not apply.

To the extent that the Secretary
finds it necessary to issue the order to carry out 49 U.S.C. Subpart VII.

Administrative authority Subpoenas
duces tecum to acquire, with respect to the programs and operations of the
Department of Transportation, all information documents, reports, answers,
records, accounts, papers and other data and documentary evidence necessary
in the performance of the functions assigned by the Inspector General Act,
which subpoena, in the case of conformacy or refusal to obey, shall be
enforceable by order of any appropriate United States District Court. Authority extends to grantees, contractors, recipients of DOT funds, individuals or entities collading with a DOT employee to violate the law, and pursuant to the Motor Carrier Safety Improvement Act., PublL. No. 106­159, 5 U.S.C. app. 3, 1, mode 1, any individual or entity regulated by the Department.

In the e vent of refusal to obey,
court order obtained through Petition to Enforce filed in appropriate
district court.

Subpoena records within purview of
audit and investigative function of DIG. A level of review has been established to make that determination as
well as a determination that the records and information sought via subpoena
is not overbroad; oppressive, and otherwise meets with all legal requirements
as well as a determination that the records or information cannot be obtained
otherwise.

US Department of Transportation US Coast Guard, G­LMI

Marine Casualty Investigation and
License suspension proceedings

46 U.S.C. 6304 and 46 CFR 4.07-5

Through local US Atty petition to
enforce filed in appropriate USDC

Actual service of subpoena
w/compliance win a “reasonable time”.

Issued by local U.S.C.G Officer in
Charge Marine Inspection representative in aid of marine casualty
investigation or Mariner License or Document suspensi on or revocation
proceeding.

US Department of Transportation US Coast Guard, G­LMI

Ports and Waterways Safety Act
violation Investigations

33 U.S.C. 1227(b)

Same as above although this
authority has seldom, if ever, been utilized because of the lack of
implementing regulations

Same as above. There are no
regulations in place implementing the statute.

Because this statute is so new, we
are unaware if any subpoena have been issued under it at this time.

Coast Guard†

33 U.S.C. § 1227

In the case of any incident,
accident, or act involving the loss or destruction of, or damage to, any
structure subject to this Act, or which affects or may affect the safety or
environmental quality of the ports, harbors, or navigable waters of the
United States, the

US Department of Transportation Federal Aviation Administration

49 U.S.C. §46104(a)

Administrator may subpoena
witnesses and records related to a matter involved in a hearing or investigation.

49 U.S.C. §46104(b). Petition U.S.
District Court to enforce subpoena. This is the avenue of enforcement for all FAA subpoenas.

US Department of Transportation Feder al Avia tion Administration

14 C.F.R. § 13.57

Party to a proceeding under 14
C.F.R. part 13, subpart D, may apply for subpoena requring the production of
documents or tangible evidence at a hearing, or for the purpose of taking
depositions.

Same as above.

In application to Hearing Officer
must show general relevance and reasonable scope.

US Department of Transportation Feder al Avia tion Administration

14 C.F.R. § 13.11

In formal FAA fact-finding
investigation under 14 C.F.R. part 13, subpart F, Presiding Officer may issue
a subpoena directing any person to appear to testify or produce documents
relating to any matter under investigation.

Same as above.

Subpoena issued by clerk subject to
motion to quash.

US Department of Transportation Feder al Avia tion Administration

49 U.S.C. § 5121(a)

The Secretary may issue subpoenas,
conduct hearings, require the production of records and property.

As the delegate of the Secretary of
Transportation the administrator of FRA is charged with enforcing the Federal
railroad safety laws, and is authorized to conduct investigations, make
reports, issue subpoenas, require the production of documents take
depositions and prescribe record keeping and reporting requirements.

FHA may seek enforcement by the
Attorney General of subpoena in Federal District Court, as authorized by 49
U.S.C. §§ 2011(a)(3) and 201.12(a)(3), and 40 C.F.R. §209.7(i).

Under 49 C.F.R. § 209.7(d), service
of a subpoena to a person is made by; handling it to the person; leaving it
at his or her office with the person in charge; leaving it at his or her
dwelling or usual abode with someone of suitable agent and discretion;
mailing it by registered or certified mail to a last known address; or giving
actual notice. Service to an entity
other than a person is made by handing a copy to a register ed agent or
company official; mailing it by registered or certified mail to a last known
address; or giving actual notice. Under 49 C.F.R. § 209.11, a party may request confidential treatment of any document provided to FHA.

As the delegate of the Secretary of
Transportation the Administrator of FRA is charged with enforcing the Federal
railroad safety laws, including investigating accidents and incidents, and is
authorized to subpoena witnesses, require the production of records,
exhibits, and other evidence, administer oaths, and take testimony.

Under its general authority under
the railroad safety laws, FRA may seek enforcement by the Attorney General of
a subpoena in Federal District Court, as authorized by 49 U..S.C.
§§20111(a)(3) and 20112(a)(3), and 49 C.F.R. §209.7(i).

Same notification and privacy
protections discussed above. See 49
C.F.R. §§209.7(d) and 209.11.

When necessary to carry out and
investigate an accident or incident, either because it resulted in the death
of a railroad employee or the injury of five or more persons or because it
appeared that an investigation would substantially serve to promote railroad
safety, FRA may authorize the issuance of subpoenas to require the production
of records and the giving of testimony.

In enforcing the hazardous materials
laws, to the extent necessary, as the delegate of the Secretary of
Transportation, the FRA Administrator may investigate, make reports , issue subpoenas, conduct hearings,
require the production of records and property, take depositions, and conduct
research, development, demonstration, and training activities.

Under 49 U.S.C. § 5122, the FRA
Administrator, as the delegate of the Secretary of Transportation, may seek
enforcement by the Attorney General of a subpoena in Federal District Court.

Some notification and privacy
protections discussed above. See 49
C.F.R. §§209.7(d) and 209.11 and 209.115.

Under 49 C.F.R. § 209.7, the Chief
Counsel may issue a subpoena in any matter related to enforcement of the
railroad safety laws. In hearings involving hazardous materials penalties, the presiding officer may issue
subpoenas upon the wr itten reque st of a party to the proceeding who makes
an adequate showing that the information sought will materially advise the
proceeding. Under 49 U.S.C. §5121(c) and 49 C.F.R. §1.49, the FRA
Administrator, as the delegate of the Secretary of Transportation, may
authorize inspectors to enter upon, inspect, and examine, at reasonable times
and in a reasonable way, the records and properties of shippes and railroads
to the extent such records and properties relate to the manufacture,
fabrication, marking, reconditioning, repair, testing, or distribution of
packages or contain ers for use by any shipper or manufacturer in the
transportat ion of hazardous materials in commerce.

US Department of Transportation National Highway Traffic Safety Administration

49 U.S.C. Chapter 301, Motor
Vehicle Safety Section 30117

Agency may require that a manufacturer of a motor vehicle or motor
vehicle equipment provide technical information related to performance and
safety

Civil Action by DOJ at request of
DOT

Service-personal or by registered
letter Subject to Privacy Act, FOIA exemptions and the provisions of 49
U.S.C. 30167 dealing with disclosure of information by the government.

Information will be needed to
further investigation or proceeding

US Department of Transportation National Highway Traffic Safety Administration

49 U.S.C. 30166 Reports including document
production and Special Orders that are comparable to subpoenas.

Agency may conduct an inspection or
investigation relating to motor vehicle safety.

Civil action by DOJ at request of
DOT

Give reasonable notice of
inspection or request.

To determine in manufacture is
complying with safety requirements.

US Department of Transportation National Highway Traffic Safety Administration

MARAD is authorized to issue a
subpoena and testificandum or subpoena duces tecum for the purpose of
investigation which is necessary and proper in carrying out the Merchant
Marine Act.

MARAD may invoke the aid of any
district court of the Untied States within the jurisdiction in which the
person resides or carries out business. A failure to obey an order of the
court may be punished by the court as contempt.

No notification requirement but 46
CFR 201.124 provides for opportunity to request quashi ng of subpoena. Elicited information may be treated as
confidential under 46 CFR 201.151.

To require the attendance of
witnesses or the production of documentary or other tangible evidence, or
both.

Civil action by DOJ at the request
of DOT.

Service in person (or on a duly
authorized representative) or by certified or registered mail. Agency may
treat any document provided confidential after a request and showing that it
is exempt from disclosure under FOIA or otherwise.

A showing that the information will
materially advance a proceeding under, or a determination of compliance with,
the hazardous material transportation law. Within 10 days a person receiving a subpoena may
apply to quash or modify the subpoena.

US Department of Transportation Research
and Special Programs Administration

To require the attendance of witnesses or the
producti on of documentary or other tangible evidenc e, or both.

Civil action by DOJ at the request of DOT.

Service in person (or on a duty authorized
representative) or by certified or registered mail. Agency may treat any
document provided confidential after request and showing it is exempt from
disclosure under FOIA or otherwise.

A showing that the information will materially advance
a proceeding or determine the appropriate action to be taken under the
pipeline safety law. Within 10 days, a person receiving a subpoena may apply
to quash or modify the subpoena.

Grants FMCSA right to inquire into,
and report on the management of the business of the motor carr ier; or a per
son controlling, controlled by, or under common control with those carriers
to the extent that the business of the person is related to the management of
the business of that carrier; and obtain from those carriers and persons
information the secretary determines to be necessary. FMCSA may subpoena
witness and records related to a proceeding or investigation. FMCSA may take testimony of a
witness by deposition and may order the witness to produce records.

If a witness does not obey a
subpoena, the agency, or a party before the agency, may petition the district
court to enforce the subpoena. The
court can enforce a refusal to obey an order of the court as an contempt of
court.

Reasonable notice must be given in
writing before taking a deposition.

Notice shall state the name of the
witness and the time and place of the deposition. Testimony taken under oath. Person taking the deposition shall prepare
a transcript of the testimony taken. Transcript shall be subscribed by the
deponent. Testimony of a witness who
is in a foreign country may be taken by the FMCSA and filed promptly. Witness summoned before the agency is entitled to the same fees and
mileage paid for those services in the courts of the U.S.

Authorizes the Secretary to
prescribe the for m and type of records to be maintained. Authorizes
employees to inspect and copy records, and inspect the equipment of a carr
ier, lessor , or association. Employees are also authorized to inspect and
copy any record of a person controlling, controlled by, or under common
control, with a carrier, if the secretary considers inspection relevant to
that person’s relation to, or transaction with, that carrier.

Provides for a legal right of entry
to permit an inspection, enforced by court of competent jurisdiction.

Secretary may prescr ibe the time
period for records to be preserved. Report of an accident or of an
investigation of the accident ca nnot be admitted as evidence or used in a
civil action for damage s related to a matter mentioned in the re port or
investigation. Courts have held that in closely regulated industries, there
is a diminished expectation of privacy and warrantless searches within the
trucking industry have been upheld and codified at section 504. Merely the
showing of a legitimate investigatory purpose and the need to conduct the inspection is sufficient to warrant the issuance of an injunction mandating the inspection.

On demand and display of proper
credentials, an employee may inspect records and equipment of a carr ier,
lessor , or association. A contract
for DOT has the same right of inspection of equipment and recor ds of a motor
carrier as an FMCSA employee.

Authorizes the Secretary to bring a
civil enforcement action against a carrier to enforce chapter 5 and the
regulations under it. The Attorney
General is authorized to institute ac tions on request of the Secretary.

In a civil action under this
provision, trial is in the judicial district where the carrier operates.

Process may be served without
regard to territorial limits of the district or of the State in which the
action is brought.

A person participating with the
carrier in a violation can be joined in the civil act ion without regard to
the residence of the person.

Grants the Secretary authority to
investigate, make reports, issue subpoenas, conduct hearings, require the
reproduction of records and property, take depositions and conduct research, development,
demonstration, and training activities, relating to the transportation of
hazardous materials.

After notice and an opportuni ty
for hearing, the Secr etar y may i ssue an order requiring compliance wth
this chapter or a regulation prescribed in this chapter.

An officer or employee, or agent
shall display proper credentials when requested Provides for notice and
hearing.

The Attorney General may, upon the
request of the Secretary, bring civil action an appropriate district court of
the U.s. to enforce chapter 51 or a regulation prescribed or order issued
under this chapter.

This provision enables the
Secretary to bring a civil action to enforce 49 U.S.C. §1410 3, or this par
t, or a regulation or order of the Secretary when violated by a carrier or broker, or
by a foreign motor carrier or foreign motor private carrier.

Trial is in the judicial district
in which the carrier operates.

Process may be served without
regard to the territorial limits of the district or State in which the action
is instituted.

A person participating with a
carrier in a violation can be joined in the civil act ion without regard to
the residence of the person.

Secretary may conduct inspections
and investigations; compile statistics; make reports, issue subpoenas;
require production of records and property; take depositions; hold hearings;
prescribe record keeping and reporting requirements; conduct or make
contracts for studies, development, testing, evaluation, and training; and
perform other acts the Secretary considers appropriate.

Secretary may delegate to a State
receiving a grant under section 31102 of this title those duties and powers
related to enforcement (including conducting investigations) of this
subchapter and regulations prescribed under this subchapter that the
Secretary considers appropriate.

Secretary shall consult with
employers and employees and their authorized representatives in connection
with inspections and investigations and offer them a right of accompaniment.

§31143(a) requires the Secretary to
conduct timely investigations of nonfrivolous written complaints
alleging that a substantial violation of a regulation prescribed under this
subchapter is occurring or has occurred within the prior 60 days.

Secretary required to give the
compliant timely notice of the findings of the investigation. The
Secretary may disclose the identity of a complaint only if disclosure is
necessary to prosecute a violation. If disclosure is necessary, the Secretary
shall take ever practical means within the Secretary’s authority to ensure
that the complaint it not subject to harrassment, intimidation, disciplinary
action, discrimination or financial loss because of disclosure.

Secretary is required to develop
drug and alcohol testing requirements that promote, to the maximum extent
practicable, individual privacy in the collection of specimens
[§31306(c)(L)].

§31306(c)(7) provides for the
confidentiality of test results and medical information (except information
about alcohol or a controlled substance of employees, except that this clause
does not prevent the use of test results for the orderly imposition of

appropriate sanctions under this
section. §31306(c)(8) ensures that employees are selected for tests by
nondiscriminatory and impartial methods, so that no employee is harassed by
being treated differently from other employees in similar circumstances.

Owner or operator of any point
source may be required to: (i) establish and maintain records; (ii) make
reports; (iii) install, use, and maintain monitoring equipment; (iv) sample
effluents; and (v) provide such other information as EPA “may reasonably
require.”

Negligent and knowing violations
subject to criminal penalties (CWA § 309(c)(1-3)). Violations also subject to
judicial civil penalties not to exceed $27,500 per day for each violation
(CWA § 309(b), (d)). Violations also subject to administrative civil
penalties not to exceed $11,000 per day up to $137,500 (CWA § 309(g)(1-2).

Information obtained under CWA §
308 is not publicly available if EPA determines “that records, reports, or
information, or particular part thereof (other than effluent data), ... would
divulge methods or processes entitled to protection as trade secrets....”
(i.e. protected under Section 1905 of Title 18), CWA § 308(b).

EPA may require submission of this
information whenever required to carry out the objective of this statute,
including but not limi ted to: developing a limitation, prohibition or
effluent standard, pretreatment standard or standard of performance;
determining whether a person is in violation of such standard or limitation;
any requirement under the statute; or
carrying out specific listed provisions of the statute.

Authorizes EPA to have access to
and copy records and inspect equipment required by CWA § 308(a)(A).

Negligent and knowing violations
subject to criminal penalties (CWA § 309(c)(1-3)). Violations also subject to
judicial civil penalties not to exceed $27,500 per day for each violation
(CWA § 309(b), (d)). Violations also subject to administrative civil
penalties not to exceed $11,000 per day up to $137,500 (CWA § 309(g)(1-2).

Information obtained under CWA §
308 is not publicly available if EPA determines “that records, reports, or
information, or particular part thereof (other than effluent data), ... would
divulge methods or processes entitled to protection as trade secrets....”
(i.e. protected under Section 1905 of Title 18), CWA § 308(b).

EPA may require submission of this
information whenever required to carry out the objective of this statute,
including but not limited to: developing a limitation, prohibition or
effluent standard, pretreatment standard or standard of performance;
determining whether a person is in violation of such standard or limitation;
any requirement under the statute; or carrying out specific listed provisions of the statute.

EPA (and the U.S. Army Cor ps of
Engineers) “may issue subpoenas for the attendance and testimony of witnesses
and the production of relevant papers, books, or documents in connection
with” administrative civil penalty hearings pursuant to CWA § 309(g).

Subpoenas may be issued by an
Administrative Law Judge or other Presiding Officer (40 C.F.R. § 22.21(b))
and are enforceable through contempt proceedings in federal district court
(CWA § 309(g)(10)).

Notice is provided prior to seeking
federal court enforcement of the subpoena.

EPA (and the U.S. Army Corps of
Engineers) may issue subpoena. Subpoenas may be issued by an Administrative
Law Judge or other Presiding Officer (40 C.F.R. § 22.21(b)).

EPA (and the U.S. Coast Guard) “may
issue subpoenas for the attendance and testimony of witnesses and the
production of relevant papers, books, or documents in connection with”
administrative civil penalty hearings pursuant to CWA § 311(b)(6).

Subpoenas may be issued by an
Administrative Law Judge or other Presiding Officer (40 C.F.R. § 22.21(b))
and are enforceable through contempt proceedings in federal district court
(CWA § 309(b)(6)(I)).

Notice is provided prior to seeking
federal court enforcement of the subpoena.

EPA (and the U.S. Coast Guard) may
issue subpoena. Subpoenas may be issued by an Administrative Law Judge or
other Presiding Officer (40 C.F.R. § 22.21(b)).

To determine compliance with the
SDWA, “[e]very person who is subject to a national primary drinking water
regulation” may be required to “provide such information as [EPA] may reasonably require.”

Failure or refusal to comply with a
requirement under this provision is subject to a judicial civil penalty not
to exceed $27,500 (SDWA § 1445(c)). Any person who violates, or fails or refuses to
comply with an administrative order requiring compliance with SDWA § 1445 is
subject to administrative civil penalties of not more than $25,000 per day of
violation (SDWA § 1414(g)(3)).

Consultation with State required if
State has primary enforcement responsibility (SDWA § 1445(a)(1)(B)).
Information obtained under SDWA § 1445 is not publicly available if EPA determines that
the information “would divulge trade secrets or secret processes.” (SDWA §
1445(d)).

Information may be requested, on a
case-by-case basis, to determine compliance with the statute.

To assist EPA in developing
national drinking water regulations, “[e]very person who is subject to a
national primary drinking water regulation” may be required to “provide such
information as [EPA] may reasonably require.” Before exercising this
authority, EPA must “seek to obtain the information by voluntary submission”
(SDWA § 1445(c)).

Failure or refusal to comply with a
requirement under this provision is subject to a judicial civil penalty not
to exceed $27,500 (SDWA § 1445(c)). Any person who violates, or fails or
refuses to comply with an administrative order requiring compliance with SDWA
§ 1445 is subject to administrative civil penalties of not more than $25,000
per day of violation (SDWA § 1414(g)(3)).

Consultation with suppliers of water and
State (if State has primary enforcement responsibility) is required (SDWA §
1445(a)(1)(C)). Information obtained under SDWA § 1445 is not publicly
available if EPA determines that the information “would divulge trade secrets
or secret processes.” (SDWA § 1445(d)).

Information may be requested to
assist the Administrator in developing regulations.

records, files, reports, records,
etc. possessed by “any supplier of water or other person subject to (A) a
national primary drinking water regulation,... (B) an applicable underground
injection control progr am, or (C) a requirement to monitor an unregulated
contaminant pursuant to [SDWA § 1445(a)], or person in charge of the
property....”

authority is subject to a judicial
civil penalty not to exceed $27,500 (SDWA § 1445(c)). Any person who
violates, or fails or refuses to comply with an administrative order
requiring compliance with SDWA § 1445 is subject to administrative civil
penalties of not more than $25,000 per day of violation (SDWA § 1414(g)(3)).

notice to the supplier of water or
other person and to the State (if the State has primary enforcement
responsibility) (SDWA § 1414(b)(1­2)). Information obtained under SDWA § 1445
is not publicly available if EPA determines that the information “would
divulge trade secrets or secret processes.” (SDWA § 1445(d)).

compliance, and to examine/audit
records of a grantee which are required to be maintained or which are
pertinent to any financial assistance under the subchapter.

EPA (or the U.S. Army Corps of
Engineers) may require MPRSA permit applicants “to provide such information
as [EPA or the Corps] may consider necessary to review and
evaluate such application” (MPRSA § 104(e)).

EPA (and the U.S. Dept. of
Transportation) may issue subpoenas compelling “the attendance and testimony
of witnesses, including parties in interest, and the production of any evidence....” (SPA § 2606(a)).

Subpoenas under this section are
enforceable (with contempt sanctions if a court order is disobeyed) in
federal district court (SPA § 2606(c)).

Authorizes EPA to require persons
to present information in connection with EPA's investigati on of employment
shifts and losses allegedly attributable to the administration or enforcement
of RCRA (including individual allegations of discharge, layoff or
discrimination)

Administrator, or any duly
designated officer, employee or representative of a State having an
authorized hazardous waste program to: request information from any person
who generates, stores, treats, transports, disposes of, or otherwise handles
or has handled hazardous waste; enter any place where hazardous wastes have
been or are generated, stored, treated, disposed of, or transported from; and
to copy all records relating to such wastes; to inspect and obtain samples of
such wastes and samples of any containers or labeling for such wastes.

6928(a) authorizes enforcement by
EPA for failure to provide a complete and truthful response to an information
request, subjecting respondent to $27,500 in penalties per day of
noncompliance for each violation.

the public, except on a showing by
the person that if made public such information would divulge information
entitled to protection under se ction 1905 of Title 18. If that showing is
made, the information will be treated as confidential except that it may be
disclosed to other U.S. employees carrying out this statute. See RCRA § 3007(b) and 40 C.F.R.
260.2

Authorizes EPA to issue orders as
“may be necessary to protect public health and the environment” including
ordering: (a) sampling, testing, and analysis; and (2) monitoring, (3) submission of
reports on above activities and on progress of cleanup.

Authorizes enforcement in judicial
civil action brought by EPA for willful violation, failure or refusal to
comply with EPA order. Subjects violator to judicial civil penalty
of $5,500 per day of violation.

Requires public meeting and
opportunity to comment whenever US or EPA proposes to settle any claim
arising under RCRA §7003, 42 U.S.C. § 6873

After EPA determines that the
handling, storage, treatment, transportation or disposal of any solid or
hazardous waste may present an imminent and substantial endangerment, EPA may
issue orders as “may be necessary to protect human health and the
environment.”

Authorizes EPA to require persons
to require owner or operator of a facility or site to: (1) make reports; (2)
conduct monitoring and testing; and (3) conduct analyses as EPA deems
“reasonable to ascertain the nature and extent” of a hazard.

EPA issues orders under RCRA §
7003(a), 42 U.S.C. § 6934(a). Violations subject to judicial civil penalties
not to exceed $5,500 per day during which person fails or refuses to comply
with EPA order under RCRA § 3013(e), 42 U.S.C. 6934(e).

EPA may require submission of
information upon determination that:
(1) the presence of any hazardous waste at a facility or site where it is, or
has been stored, treated, or disposed of, or (2) the release of any such
waste from such a facility or site, “may present a substantial hazard to
human health or the environment.”

Section 9005 authorizes any
officer, employee or representative of EPA duly designated by the
Administrator, or any duly designated officer, employee or representative of
a State acting pursuant to Section 9003b(h)(7) or with an approved program to request information from
any owner or operator of an underground storage tank (UST) relating to such
tank, their associated equipment, and their contents; to enter any
establishment or other place where an UST is located; to inspect and obtain
samples of any regulated substances contained in such tank; to conduct
monitoring and sampling of the tanks, associated equipme nt, contents or
surrounding soils, air, surface wate r or groundwater; and to take corrective
action. This authority also authorizes EPA to request the owner/operator to
conduct monitoring or testing and
permit EPA access to copy recor ds and ha ve acce ss for corrective action.

Failure to comply may result in EPA
issuing an order for compliance.

Information obtained shall be
available to the public, except on a showing by the person that if made
public such information would divulge information entitled to protection
under se ction 1905 of Title 18. If that showing is made, the information will be treated as
confidential except that it may be disclosed to other U.S. employees carrying
out this statute. information will be treated as
confidential except that it may be disclosed to other U.S. employees carrying
out this statute.

Information may be requested for
the purposes of developing or assisting in the development of any regulation;
conducting a study; taking corrective action; or enforcing provisions of the
statute.

President to require persons to
furnish, upon reasonable notice , infor mation or document s relating to: the
identification, nature , and qua ntity of materials which have been or are
generated, stored, or di sposed of at a vessel or facility; the nature or
extent of a release or threatened release of a hazardous substance or
pollutant or conta minant at or from a vessel or facility; or information
relating to the ability of a per son to pay for or to perform a cleanup.

104(e)(5)(A)) issue an order
directing compliance with the request. Under CERCLA 104(e)(5)(B), the
President may ask the Attorney General to commence a civil action to compel
compliance with a 104(e )(2) r equest or 104(e)(5)(A) order. Where there is a
reasonable basis to believe that there may be a rele ase or threat of a r
elea se of a hazardous substance or pollutant or contaminant, the court shall
enjoin interference with such re quests or orders or direct compliance with
such requests or orders unless under the circumstances of the case the demand
for information or documents is arbitrary and capricious, an abuse of discretion, or otherwise not in
accordance with law. The court may assess a civil penalty not to exceed
$27,500 for each day of noncompliance against any person who unreasonably
fails to comply with a request or order.

not required to furnish information
unless EPA has provided “reasonable notice.” Similarly, EPA may issue an
order pursuant to CERCLA 104(e)(5)(A) “after such notice and opportuni ty for
consultation as is reasonably appropriate under the circumstances.”
Considered public information unless party can make a showing that is
satisfactory to the President that the information is protected under 1905 of
Title 18 or other applicable statutes. Speci fic informat ion as listed in
104(e )(7)(F) is not protected from public release.

for the purposes of determining the
need for re sponse, or choosing or taking any re sponse a ction under CERCLA,
or otherwise enforcing the pr ovisions of CERCLA. EPA can only request
information from a person “who has or may have information rele vant to” one
of the prescribed categories. EPA’s ability to obtain financial information
about a PRP from a source other than a PRP itself is limited by the Right to
Financial Privacy Act, 12 U.S.C. 3401, et. seq.

Environmental Protection Agency Office of Site Remediation Enforcement U.S. EPA

Authorizes EPA to require persons
to present information in connection with EPA's investigati on of employment
shifts and losses allegedly attributable to the administration or enforcement
of CERCLA (including individual allegations of discharge, layoff or
discrimination)

No specific enforcement authority
in CERCLA.

Environmental Protection Agency Office of Site Remediation Enforcement U.S. EPA

CERCLA 122(e)(3)(B) provides that
the President may by subpoena require the attendance and testimony of
witnesses and the production of reports, papers, documents, answers to
questions, and other information that the Preside nt
deems necessary.

If a respondent to such a subpoena
refuses to appear to testify or provide documentary evidence, or refuses to
answer any or all of the questions put to him, EPA may commence enforcement proceedings in U.S.
district court. The statute provides that in the event of contumacy or
failure or refusal of any person to obey any such subpoena, any district
court of the United States in which venue is proper shall have jurisdiction
to order any such person to comply with such subpoena. Any failure to obey
such an order of the court is punishable by the court as a contempt thereof.

EPA can exercise this authority
only in order to “collect information necessary or appropriate for performing
the allocation under” CERCLA 122(e)(3)(A) “or for otherwise implementing” CERCLA
section 122 (which relates to CERCLA settlements).

CERCLA 109(a)(5) and 109(b)
authorize the Presi dent to issue subpoenas for the attendance and testimony
of witnesses and the production of documents and in connection with hearings
on admini strat ive penal ties proposed for violations enumerated in Sec. 109(a)(1)(A)­ (E), (b)(1)-(5).

If a respondent to such a subpoena
refuses to appear to testify or provide documentary evidence, or refuses to
answer any or all of the questions put to him, EPA may commence enforcement
proceedings in U.S. district court. The statute provides that in the event of contumacy or
failure or refusal of any person to obey any such subpoena, any district
court of the United States in which venue is proper shall have jurisdiction
to order any such person to comply with such subpoena. Any failure to obey
such an order of the court is punishable by the court as a contempt thereof.

Notice is provided prior to seeking
enforcement of a subpoena.

EPA can exercise these authorities
for the purpose of obtaining testimony and documentation relevant to issues
in hearings on admini strat ive penalties proposed for violations of CERCLA
103.

Authorizes Administrator of EPA to
issue subpoenas to require attendance and testimony of witnesses and/or
production of reports, documents, answers to questions, and other infor
mation Administrator deems necessary for carrying out Administrator's responsibilities
under TSCA.

If there is noncompliance with a
subpoena, United States can go to US District Court to get order requiring
compliance. Failure to comply with
District Court order is subject to contempt of court.

None in statute or regulations, although
information provided under subpoena could be entitled to protection as
confidential business information under TSCA section 14 (15 U.S.C. 2613).
(Information provided under subpoena is entitled to same level of protection
under section 14 as any other material provided to EPA pursuant to TSCA.)

The Administrator may require a
person who owns or operates any emission source, who manufactures emissi on
control equipment or process equipment, who the Administrator believes may
have information necessary for the purposes set forth in this subsection, or
who is subject to any requirement of this statute, with one exception, on a
one­time, periodic, or continuous basis to establish and maintain records;
make reports; keep records; submit compliance certifications; and provide
such other information as the Administrator may reasonably require.

EPA may enter the facility at
reasonable times, upon showing proper credentials, to inspect records. EPA
may issue a compliance order if information request is not responded to. EPA
may also issue civil penalties and seek a subpoena to compel production of
the documents.

Records are available to the public
except upon a showing satisfactory to the Administrator that they are
protected under Section 1905 of Title 18.

For the purposes of developing or
assisting in development of any implementation plan, standard of performance,
or emission standard under specific provisions of the statute; for the
purpose of development of any regulation under speci fic pr ovisions of the
statute; for determining compliance with any of these standards or
requirements; or carrying out any provision of this statute, except for a
provisi on of subchapter II with respe ct to a manufacturer of new motor
vehicle s or engines.

Environmental Protection Agency

Air Pollution Prevention and
Control; Section 208 of the Clean Air Act, 42 U.S.C. §7542,

Every manufacturer of new motor
vehicles or new motor vehicle engines, engine parts or components, and

EPA may enter the facility at
reasonable times, upon showing proper credentials, to inspect records.

Records are available to the public
except upon a showing satisfactory to the Administrator that

Information that the Administrator
may reasonably require to determine whether the person is in

Office of Regulatory Enforcement

Pub.L. 89-272

persons subject to the requirements
of this part or subpart C of this subchapter, shall establish and maintain records and provide information the Administrator may reasonably require to determine whether the person is in compliance or to otherwise carry
out the provision of this part and part C.

EPA may issue civil penalties and
seek injunctive relief to compel production of the required information.

they are protected under Section
1905 of Title 18.

compliance or to other wise carry
out the provision of this part and part C.

Authorizes EPA to require persons
to present information in connection with EPA's invest igati on of employment
shifts and losses allegedly attributable to the administration or enforcement of CAA (including individual alle gations
of discharge, layoff or discrimination)

No specific enforcement authority
in CAA

Environmental Protection Agency Office of Regulatory Enforcement

Sec. 307(a) of the Clean Air Act,
42 U.S.C. 7607, Pub.L. 89-272.

The Administ rator may issue
subpoenas for the attendance and testimony of witnesses and the production of
relevant papers, books, and documents, and he may administer oaths.

Power to subpoena witnesses and to
issue subpoenas duces tecum.

Except for emission data, upon a
showing satisfactory to the Administrator by such owne r or operator that
such papers, books, documents, or information or
particular part thereof, if made public, would divulge trade secrets or
secret processes of such owner or operator, the Administrator shall consider
such record, report, or information or particular portion thereof confidential
in accordance with the purposes of section 1905 of title 18 of the United
States Code, except that such paper, book, document, or information may be
disclosed to other officers, employees, or authorized representatives of the
United States concerned with carrying out this Act, to persons carrying out
the National Academy of Sciences' study and investigati on provided for in
section 202(c) [42 U.S.C. § 7521(c)], or when relevant in any proceeding
under this Act.

Authority to collect information
from manufacturer of regulated products “as may be reasonably required” to
determine whether manufacturer is in compliance with Noise Control Act

Statute provides no explicit enforcement
mechanism, but does provide penalties of up to $10,000 and imprisonme nt for
up to six months for false submissions or tampering with required monitoring
device.

Confidential business information
is explicitly protected as provided in 18 U.S.C. 1905.

None

Environmental Protection Agency* Office of General Counsel Pesticides and Toxic
Substances Law Office

The Administrative Law Judge
presiding in a publ ic hearing on EPA decisions to cancel, suspend, or deny r
egist ration or change the classification of a pesticide product may issue a
subpoena to compel testimony or production of documents from any person.

Subpoena may be enforced by an
appropriate United States district court.

The Administ rative Law Judge shall
be guided by the principles of the Federal Rules of Civil Procedure in making
any order for the protection of the witness or the content of documents
produced and shall order the payment of reasonable fees and expenses as a
condition to requiring testimony of the witness.

Subpoenas may be issued only upon
determination by the Administrative Law Judge (1) that such discovery shall
not in any way unreasonably delay the proceeding, (2) that the information to
be obtained is not otherwise obtainable and (3) that such information has
significant proba tive value. The
Administrative Law Judge shall be guided by the principles of the Federal
Rules of Civil Procedure in making any order for the protection of a
witness or the content of the documents produced.

Environmental Protection Agency Office of General Counsel Pesticides and Toxic
Substances Law Office

Presiding officer in public
hearings on EPA decisions to establish, modify, suspend or revoke a toler
ance or exemption from the requirement of a tolerance for a pesticide
chemical residue in food or feed may issue a subpoena to compel test imony or
production of documents from any person.

Subpoena may be enforced by a
federal district court.

The presiding officer shall be
governed by the Federal Rules of Civil Procedure in making any order for the
protection of the witness or the content of documents produced and shall
order the payment of reasonable fees and expenses as a condition to requiring
testimony of the witness.

The presiding officer shall be
governed by the Federal Rules of Civil Procedure in making any order for the
protection of the witness or the content of documents produced and shall
order the payment of reasonable fees and expenses as a condition to requiring
testimony of the witness.

Environmental Protection Agency†

42 U.S.C. § 11045

Toxic Substances Control Act - in
any proceeding for the assessment of a civil penalty

investigation under the Farm Credit
Act, the FCA or its designated representative has the power to issue, revoke,
quash or modify subpoenas and subpoenas duces tecum.

States District Court for the
District of Columbia, or the United States district court for the judicial
district or the United States court in any territory in which the proceeding
is being conducted. Such courts have
jurisdiction and power to order and require compliance with the subpoena. Any
person who willfully fails to comply with a subpoena shall be guilty of a
misdemeanor and, upon conviction, shall be subject to a fine or not more than
$1,000 or to imprisonment for a term of not more than one year, or both.

receipt to the last know address of
the person. 12 C.F.R §§622.9 and
622.106. Unless ordered by the FCA Board or required by law, the entire
record of any administrative hearing is for the confidential use only of the
FCA and its staff, the presiding officer, the parties, and other appropriate
supervisory authorities and shall not be public. 12 C.F.R. § 622.20. All
information, documents, or testimony that the FCA obtains in the course of a
formal Investigation is confidential. 12 C.F.R. §622.103.

general relevance and reasonable
scope of the testimony or other evidence sought as a condition precedent to
issuing the subpoena. 12 C.F.R. §622.9. Any person to whom a subpoena is
directed may apply to quash or modify the subpoena both in an administrative
hearing and a formal investigation. The presiding officer, FCA
representative, or the FCA Board may deny the application or, after notice to
the party that issued the subpoena and after affording that party an
opportunity to reply, may quash or modify the subpoena or impose reasonable
conditions. 12 C.F.R. §§ 622.9 and 622.106.

Discr etion of authorized
Commission personnel, subject to requirement in the case of certain personnel
that no administrative subpoena may issue without the prior approval of the
Commission’s Office of General Counsel See 47 C.F.R. §§ 1.331 et seq. (Issuance
by Commissioners and by ALJs in hearing cases) 47 C.F.R. §§ 0.101(k),
0.111(k) (certain offices and bureaus must obtain prior OGC approval of any
subpoena issuance).

Federal Communications Commission

Inspector General Act, 5 U.S.C.
app. § 6

Production of information and
documents related to agency programs/operations from entitites/persons other
than federal agencies

Federal Deposit Insurance Corporation Deputy Counsel to the Inspector General

The Office of Inspector General
(OIG) of the FDIC is authorized to issue administrative subpoenas pursuant to
the Inspector General (IG) Act of 1978, as amended, 5 U.S.C. app. 3 (2001).

The FDIC is authorized to subpoena
all information and documentary evidence necessary in the performance of the
functions assigned by the IG Act.

In the case of refusal to obey, the
OIG enforces subpoenas through actions brought in U.S. district court.

The OIG’s use and dissemination of
subpoenaed information is subject to various laws including the Right to Financial
Privacy Act, the Electronic Communications Privacy Act, the Freedom of
Information Act, and the Privacy Act.

The FDIC OIG has established a
policy governing requests for and the issuance of administrative subpoenas,
FDIC OIG Policy 110.6 (May 1999).

Federal Deposit Insurance Corporation (Resolution Trust Corporation)†

12 U.S.C. § 1821(l)

Only w/ approval from the Board or
their designees; The Corporation may, as conservator, receiver, or exclusive
manager and for purposes of carrying out any power, authority, or duty with
respect to an insured depository institution, exercise any power authorized
under section 1818(n) of this title (including subpoena authority)

The Commission may authorize its
Chairman or Vice Chairman to issue an order requring any person to submit
sworn written answers to written questions. 2 U.S.C. §437d(a)(1); 11 C.F.R. §
111.11. The Commission may also compel deposition testimony and the
production of evidence relating to the execution of the Commission’s duties.
2 U.S.C. §437d(a)(3),(4); & 11 C.F.R. § 111.12.

For refusals to obey any order or
subpoena, the Commission may petition a United States district court seeking
a court order that requires compliance. 2 U.S.C. § 437d(b).

Subpoenas that seek financial
information may be subject to the Right to Financial Privacy Act of 1978,
Pub. L. No. 95-630-, 92 Stat. 3697 (1978). Pursuant to the Privacy Act of
1974, Pub. L. No. 93-579, 88 Stat. 1896 (1974), the Commission published its System
of Records at 62 Fed. Reg. 65, 694 (1997), which permits release of all
records to the public once the case has closed, with the exception of those
records that are exempt from disclosure by the Freedom of Information Act.
The System of Records is currently under review for potential revisions.

The Commi ssion reviews the content
of subpoenas and orders and votes to approve their issuance. Motions to quash
or modify subpoenas are also considered by the Commission. 11 C.F.R. § 111.15.

Essentially a subpoena duces tecum
for all documentary evidence necessary for the performance of the functions
assigned under the IG Act.

For refusals to obey an IG
Subpoena, the IG may petition a United States district court seeking a court
order that requires compliance. 5 U.S.C. app. 3, §6(a)(4).

Same as Federal Election Commission
process above, except under the System of Records, response to IG subpoenas
are not publicly released.

The scope of IG subpoenas and
methods of service are promulgated in 13 C.F.R. §§ 101.302­101.303. Internal
standards and procedures have been issued in an FEC OIG manual.

Federal Emergency Management Agency

Federal Emergency Management Agency

Section 6(a)(4) of the Inspector
General Act of 1978. (Exercises authority similar to those of other Inspec
tor Generals under the Act.)

Federal Housing Finance Board

Federal Housing Finance Board

The source of authority for the
subpoena power of the Federal Housing Finance Board (Finance Board) is
section 2B(a)(5) of the Federal Home Loan Bank Act (Act), 12 U.S.C. §
1422b(a)(5), as amende d by sec tion 606 of the Federal Home Loan Bank System
Moder nization Ac t of 1999 ( Moder nization Act), Title VI of the
Gramm-Leach-Bliley Act, Pub. Law No. 106-102, 113 Stat. 1338 (Nov. 12, 1999).
Section 2B(a)(5) of the Act confers on the Finance Board the same
administrative enforcement powers with respect to the twelve Federal Home
Loan Banks (12 Banks) and the Office of Finance, and their executive officers
and directors, as those granted to the Office of Federal Housing Enterprise
Oversight (OFHEO) with respect to the Federal National Mortgage
Association (Fannie Mae), the Federal
Home Loan Mortgage Corporation (Freddie Mac), or their directors or executive
officers, under sections 1371­1379B of Title XIII of the Housing and
Community Development Act of 1992, known as the Federal Housing Enterprises
Financial Safety and Soundness Act of 1992. Pub. Law No. 102-550,
Title XIII, §§ 1371­1379B, 106 Stat. 3986 - 3994 (Oct. 28, 1992) (Safety and
Soundness Act). See 12 U.S.C. §§ 4631­4641. The Finance Board has not yet adopted any rules implementing
the statutory provisions, but has a proposed rule outstanding that addresses,
among other things, the agency’s subpoena authority. See 65 Fed. Reg. 78994 (Dec. 18,
1999) (proposed rule) (to be codified at 12 CFR Part 908).

Section 2B(a)(5) of the Act
incorporates by reference the subpoena authority in section 1379B of the
Safety and Soundness Act, see 12 U.S.C. § 4641. Under that authority
and sec tion 2B(a)(7) of the Act, the Finance Board’ s proposed rule provides
that in the course of or in connection with an admi nistrativ e enforc eme n
t proceeding, the Finance Board shall have the authority to administer oaths
and affirmations, to take and pre serve testimony under oath, to issue
subpoenas and subpoenas duces tecum, and to
revoke, quash, or modify subpoenas and subpoenas ducestecum. The attendance
of witnesses and the produ cti on o f documents provided for in this section
may be required from any place in any State at any designated place where
such proceeding is being conducted.

Under the Act, the Finance Board may
file an action in the United States district court for the judicial district
where the proceeding is being conducted or where the witness resides, or in
the United States District Court for the District of Columbia, for
enforcement of any subpoena or subpoena duces tecum issued pursuant to
section 2B(a)(5). See 12 U.S.C. §§ 1422b(a)(5) and (a)(7). Such courts
shall have jurisdiction over such actions and
power to order and require compliance with such subpoenas and subpoenas duces
tecum. See 12 U.S.C. § 4641(c). The proposed rule sets out this
authority. See 12 CFR § 908.8, 65 Fed. Reg. 78994, 79000. The proposed
rule also establishes procedures for the issuance and enforcement of
subpoenas, including: failure to appear at a proceeding (§ 908.9(a)(4)); authority
of the presiding officer to issue subpoenas and subpoenas duces tecum
(§908.21(b)(5)); service of subpoenas (§ 908.26(d)); witnesses fees and
expenses (§ 908.29); no discovery of privileged matter (§ 908.46(d)); motions
to compel document discovery from parties (§
908.47(f)); issuance of protective orders (§ 908.47(g)); enforcement of
discovery subpoenas (§ 908.7(h)); document subpoenas to non-parties (§
908.48), and issuance and enforcement of subpoenas requiring attendance at a
deposition in lieu of appearance at a hearing (§ 908.49)). See 65 Fed. Reg. 78994 ff.

The Finance Board’s subpoena
authority only extends to the 12 Bank s, the Office of Finance, and to
persons who are executive officer s or directors of a Bank or the Office of
Finance, in connection with an enforcement proceeding under section 2B(a)(5)
of the Act. Apart from this specific authority, the Finance Board does not
have authority to subpoena the financial recor ds of any private citizen. The
subpoena provisions in the proposed rule would allow for adequate notice to a
Bank, the Office of Finance, or any executive officer or director of a Bank
or the O ffice of Finance. The Finance Board’s civil administrative subpoenas
are not self-enforcing and, as stated, the Finance Board has the authority under
the Act to seek enforcement of such subpoenas in an appropriate district
court, as set forth in the rule.

The proposed rule contains
provisions addressing the requirements for the issuance of subpoenas or
subpoenas duces tecum, but the Finance Board has not yet adopted a final rule
on these matters.

Federal Maritime Comm ission

Federal Maritime Commission

Subpoena in investigations and
adjudicatory proceedings (Shipping Act of 1984, as amended;

In investigations and adjudications
under the Shipping Act, the Commission may compel attendance of witnesses and

In case of refusal to obey, the
Attorney General at the request of the Commission may seek enforcement by

Notice and opportunity for hearing
are required prior to suspension of a tariff, , or request to the Secretary
of

A presiding officer may require the
party seeking a subpoena to show the relevance and scope where it appears
that such

Pub. L. 105-258; 46 U.S.C. app. §
1711(a)(2); 46 C.F.R. §502.131.)

production of evidence.

a U.S. district court. 46 U.S.C.
app. § 1713(c). In addition, the Commission may suspend a common carrier’s
tariff or use of a tariff for failure to supply information. 46 U.S.C. app. §
1713(b)(2). Additional penalties of up to $50,000 per shipment may apply to
carriers who operate under such a suspended tariff. 46 U.S.C. app. §
1713(b)(3). The Commission may also request that the vessels of such carrier
be refused clearance by the Secretary of the Treasury. 46 U.S.C. app. §
1713(b)(4). Such orders are subject to the disapproval of the President. 46
U.S.C. app. § 1712(b).

In furtherance of the Commission’s
mandate to make rules and regulations affecting shipping in the foreign trade
to adjust or meet general or special conditions unfavorable to shipping in
the foreign trade, the Commission may require any person to file “a report,
answers to questions, documentary materials and other information.” 46 U.S.C.
app. § 876(f)(1). In addition, the Commission may subpoena witnesses and
evidence in such proceedings. 46 U.S.C. app. § 876(g)(2).

Failure to file a report, etc. as
required by the Commission, results in liability for a civil penalty of not
more than $5000 for each day the information is not provided . 46 U.S.C. app.
§ 876(f)(4). Failure to comply with a subpoena may result, after notice and
hearing, in suspension of a common carrier’s tariff or use of a tariff, and a
penalty of not more than $5000 for each day the information is not provided.
46 U.S.C. app. § 876(g)(4).

Notice and hearing before
suspension of tariff to enforce subpoena. The Commission may refuse to
disclose to the public a response provided under the terms of 46 U.S.C. §
876, notwithstanding any other law. 46 U.S.C. § 876(h).

The Commi ssion may seek
enforcement by a U.S. district court. 46 U.S.C. app. § 876(g)(5).

Pursuant to its authority to
investigate “whether any laws, rules, regulations, policies, or prac tices of
foreign governments, or any practices of foreign carriers or other persons
providing maritime or maritime-related services in a foreign country result
in conditions that ... adversely affect the operation of United States
carriers... and do not exist for foreign carriers of that country in the United
States,” the Commission may require any person to file reports, answers to
questions, documentary material or other information. 46 U.S.C. app. §
1710a(d)(1). In addition, the

The Commission may determine that
information submitted under this provision “shall not be disclosed to the
public.” 46 U.S.C. app. § 1710a(d)(3).

Commission may issue subpoenas to
compel attendance and testimony of witnesses and production of evidence. 46
U.S.C. app. § 1710a(d)(2).

Federal Maritime Commission

Nonadjudicatory investigations (46
C.F.R. Part 502, Subpart R.).

In connection with investigations
undertaken pursuant to the Commission’s regulatory duties, the Commission may
issue orders or subpoenas directing persons to appear or to produce
documents, 46 C.F.R. § 502.286, order testimony be take by deposition, §
502.287, or order filing of a report or answer to specific questions, §
502.288.

In case of failure to comply with
such processes, the Commission may initiate “actions for enforcement by the Commission
or the Attorney General and forfeiture of penalties or criminal actions by
the Attorney General.” 46 C.F.R. § 502.289.

Permits Commission and ALJs to
issue subpoenas, on their own motion or on application of a party, requiring
the attendance of witnesses and the production of documents or physical
evidence.

ALJ or General Counsel at request
of ALJ or direction of Commission, may initiate proceedings in appropriate
U.S. district court to enforce subpoena.

None specified.

Subpoenas may be issued for
relevant, non-privileged matter that is admissible evidence or appears likely
to lead to the discovery of admissible evidence. Subpoenas must describe with
sufficient particularity the evidence required to be produced, and must not be otherwise “invalid” or
“unreasonable.” Subpoenas may be served by any person 18 or over or by
registered or certified mail, return receipt requested. Copy of subpoena
bearing certificate of service to be filed with Commission or ALJ. Witness
fees the same as the U.S. district courts. Motions to revok e or modify
subpoenas may be filed within 5 days of service of the subpoena or at the
hearing, whichever is sooner.

Federal Reserve, Board of Governors
of the

Board of Governors of the Federal Reserve System

Federal Reserve Act, 12 U.S.C. §
603

Authorizes investigations,
including authority to “send for persons and papers, subpoena witnesses, and
administer oaths,” to ensure compliance with agreements limiting activities
of Agreement corporations

None identified

None stated; RFPA applies to
subpoena to financial institution seeking customer records unless disclosure
is exempt under 12 U.S.C. § 3413 or copy of subpoena is sent first to
customer under 12 U.S.C. § 3405.

Investigation may be instituted,
triggering subpoena authority, whenever the Board “shall ascertain that the
regulations prescribed by it are not being complied with.”

Board of Governors

Change in Bank Control Act, 12
U.S.C.

Authorizes investigations of
principals who seek to

Judicial enforcement same as under
1818(n);

None stated; RFPA applies to
subpoena to

Subpoenas are authorized in
connection

of the Federal Reserve System

§ 1817(j)(15)

acquire control of voting stock of
a financial institution, including exercise of authority under 1818(n). See
below.

see below. Also, Board may disapprove acquisition by
any person who fails to furnish information required by the agency. 12 U.S.C.
§ 1817(j)(7)(E).

financial institution seeking
customer records unless disclosure is exempt under 12 U.S.C. § 3413 or copy
of subpoena is sent first to customer under 12 U.S.C. § 3405. RFPA exemptions include § 3413(b), which
exempts from the RFPA disclosures to the Board by a financial institution
pursuant to the Board’s supervisory or regulatory functions with respect to
any financial institution, holding company, subsidiary, or
institution-affiliated party thereof; § 3413(d), which governs records and
information required to be reported under Fe deral law or regulation; and §
3413(f), which relates to subpoenas issued by administrative law judges in
formal adjudicatory proceedings.

with any investigation to determine
relevant factors under Change in Bank Control Act, or to make independent
determination of accuracy and completeness of information provided by
notificant, or any other investigation deemed necessary by the agency to
determine whether any person has filed inaccurate, incomplete or misleading information
or has violated, is violating, or is about to violate the act or its
regulations. 12 U.S.C. § 1817(j)(15)(A). Under Board practice, subpoena
authority is granted to specified Board counsel pursuant to a formal Order of
Investigation issued by the Board’s General Counsel upon a showing of
possible violation of law, regulation, etc.

Board of Governors of the Federal
Reserve System

Federal Deposit Insurance Act, 12
U.S.C. § 1818(n)

Authorizes ag ency or designated
representative to “issue, revoke, quash, or modify” subpoenas in connection
with admini strat ive enforcement proceedings under 12 U.S.C. § 1818, which
include proceedings against financial institutions and their
institution-affiliated parti es for unsafe or unsound banking practices, bre
aches of fiduciary duty, and violations of law or regulation. Subpoenas may
require documents from any place within the jurisdiction of the United
States.

U.S. District Courts may enforce
subpoenas or subpoenas duces tecum; refusal to comply is a misdemeanor
punishable by up to $1000 or one year imprisonment, or both. .

None stated; see above regarding
RFPA

Subpoenas are authorized “in the
course of or in connection with any proceeding under” sections 1818 or
1820(c) relating to enforcement proceedings against financial institutions
and their institution-affiliated parties and claims for insured deposits.
Under Board practice, subpoena authority is granted to specified Board
counsel pursuant to a forma l Order of Investigation issued by the Board’s
General Counsel upon a showing of possible viol ation of law, regulation,
etc.

Board of Governors of the Federal Reserve System

Federal Deposit Insurance Act, 12
U.S.C. § 1820(c)

Authorizes exerci se of subpoena
powers under § 1818 (n) in connec tion with bank examinations as well as
investigations to determine compliance with banking laws.

See above regarding § 1818(n)

None stated; see above regarding
RFPA

As under § 1818(n), Board practice
requires issuance of a formal Order of Investigation to authorize issuance of
a subpoena.

Board of Governors of the Federal Reserve System

Bank Holding Company Act, 12 U.S.C.
§ 1844(f)

Authorizes exerci se of subpoena
power in connection with any application, examination, investigation, or other proceeding
under the Act. As with subpoenas under § 181(n), testimony and documents may
be required from any place within the jurisdiction of the United States.

Same enforcement authority as under
§ 1818(n).

None stated; see above regarding
RFPA

See above regarding Order of
Investigation

Board of Governors of the Federal Reserve System

International Banking Act of 1978,
12 U.S.C. § 3108

Authorizes Board or its designated
representative to issue, revok e, quash, or modify subpoenas in connection
with any application, examination, investigation, or other proceeding under
the Act. Production is required from any place subject to the jurisdiction of
the United States

Enforceable through action in
United States District Court; fine for noncompliance is imposed “under Title
18,” or imprisonment of up to one year, or both; each day of refusal to
comply is considered a separate offense

None stated; see above regarding
RFPA

See above regarding Order of
Investigation

Board of Governors of the Federal Reserve System Office of Inspector General

Inspector General Act of 1978,
Public Law 95­452, 5 U.S.C. appendix [This is the same authority exercised by
other Inspectors General.]

Administrative subpoena authority,
generally recognized as limited to subpoena duces tecum (statutory
language: [Each Inspector General...is authorized... ] to require by subpena
the production of all information, documents, reports, answers, records,
accounts, papers, and other data and documentary evidence necessary in the performance of the functions
assigned by this Act, which subpoena, in the case of contumacy or refusal to
obey, shall be enforceable by order of any appropriate United States district
court: Provided, That procedures other than subpoenas shall be used by
the Inspector General to obtain documents and information from Federal
agencies

In the event of refusal to obey,
court order obtained through petition to enforce filed in the appropriate
U.S. District Court

None specific to the Inspector
General Act; statutor y notification requirements followed for Inspector
General subpoenas issued pursuant to the Right to Financial Privacy Act

OIG has established within OIG
various policies and procedures regarding subpoena request and issuance.

Requires “reason to believe” that
recipient is in possession, custody, or control or documentary material, or
has information, relevant to unfair or deceptive acts or practices in or affecting
commerce within the meaning of FTC § 5, or relevant to antitrust
violations. Must be signed by a Commissioner pursuant to a Commission
resolution; authority is non-delegable. Recipients may file petitions to
limit or quash. See 16 CFR § 2.7(d).

Subpoenas for testimony of
witnesses and production of documentary evidence in FTC investigations other
than those covered by section 20 of the FTC Act (see below)

See above.

See above.

Subpoena must “relat[e] to a matter
under investigation” by the FTC and must be signed by “a member of the
Commission.” Recipients may file
petitions to limit or quash for disposition by a designated
Commissioner. See 16 CFR § 2.7(d).
Subpoenas are also available in agency adjudicatory proceedings. See 16 CFR § 3.34.

Federal Trade

Section 6(b) of the FTC Act; 15
U.S.C. § 46(b)

Annual and special reports of
persons,

See above.

See above.

Reports under oath may be required,
via general

Commission

partnerships, and corporations

or special order, to persons,
partnerships, and corporations (except exempted entities) engaged in, or
whose business affects, commerce.

Federal Trade Commission

Section 6(a)(4) of the Inspector
General Act of 1978, as amended, P.L. 95-452, 5 U.S.C. app.

Subpoenas for production of
information, documents, reports, answers, records, accounts, papers, and
other data and documentary evidence

Procedures other than subpoenas
must be used to obtain documents and information from Federal agencies.

Federal Trade Commission†

“Second Request” authority under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976: Section 7A of the
Clayton Act, 15 U.S.C. 18a as amended by Section 630 of Pub.L. No. 106-553, 114 Stat. 2762(2000).
The authority to issue second requests is found in 15 U.S.C. 18a(c). Rules
implementing the Act are found at 16 C.F.R. Part 801 et seq. See 16
C.F.R. 803.20 (“Requests for additional information or documentary material”)

Certain mergers and acquisitions
may not be consummated until the parties provide the FTC and the Depar tment
of Justice (DOJ) with preme rger notifi cation and observe a waiting period.
During that waiting period, either the FTC or DOJ “may require the submission
of additional i nformat ion or documentary material relevant to the proposed
acquisition” from the parties. (This is referred to as
issuing a “second request.”)

Under 15 U.S.C. 19a(g)(2), if a
party fails substantially to comply with a second request, a district court
may order compliance, extend the waiting period until there has been
compliance, and grant other equitable relief.

General Services Administration

General Services Administration Personal Property Division (LP) U.S. General Services
Administration, Office of the Inspector General

The GSA Inspector General has the
authority to require the production of “all information, documents, reports,
answers, records, accounts, papers, and other data and documentary evidence
necessary in the performance of the functions assigned by this Act…” The GSA
OIG’s authority extends to the programs and operations of GSA.

Subpoenas issued by the GSA
Inspector General “shall be enforceable by or der of any appropriate United
States district court….”

In the exercise of its subpoena
authority, the GSA OIG complies with the notification and privacy provisions
and other procedures, when applicable, of the Right to Financial Privacy Act,
12 U.S.C. §3401 et seq., the Cable Act, 47 U.S.C. §551, the Electronic
Communications Privacy Act, 18 U.S.C. §2701 et seq., (and related
statutes), and the Health Insurance Portability and Accountabili ty Act of
1996, 104 Pub. L. 191.

GSA OIG subpoenas are signed by the
Inspector General himself or, in his absence, by the Deputy Inspector
General, after review and concurrence by the Counsel to the Inspector
General. Legal review is based on legal sufficiency, scope, and, if
appropriate, whether other available means of obtaining the necessary
information have been explored.

A Board judge may require by
subpoena the attendance of witnesses, and production of books and papers, for
the taking of testimony or evidence

If a person who resides, is found,
or transacts business within the jurisdiction of a United States district court,
refuses to obey a

Every subpoena must be in the form
specified in the appendix to the Board's rules of procedure . 48 CFR
6101.20(d) [Rule 120(d)].

Board Rule 120(a) states the
expectation that, in Board proceedings, parties are expected to cooperate by
making witnesses and evidence

U.S. General Services
Administration, Board of Contract Appeals

CFR 6101.20 (2000).

by deposition or in the hearing of
an appeal by the Board.

subpoena issued by the Board, the
Board, through the Attorney General, may apply to that court to issue an
order requiring the person to appear before the Board, to produce evidence or
to give testimony, or both. Failure to obey the order may be punished by the
court as a contempt of court.

The subpoena form is GSA Form 9534
(Rev. 1­98), 48 CFR Pt. 61, App. Board Rule 120 contains the procedures for
obtaining, serving, and governing proof of service of a subpoena; provides
for motions to quash or modify a subpoena; and sets forth the statutory
enforcement mechanism described above. Each appellant receives a copy of the Board's rules of procedure with
the notice of docketing of its appeal. There are no specific privacy
protections connected to a Board subpoena, which is part of the record in the
appeal. However, Board Rule 112(h)(1) provides that a party may request that
documents be submitted under protective order or held in camera, and Rule
112(h)(2) states that a party may ask, or the Board direct, that testimony be
received under protective order or in camera. 48 CFR 6101.12(h).

available without a subpoena. If
one party requests a subpoena, the hearing judge usually consults with the
opposing party before making the determination to issue the subpoena. In many
instances in which subpoenas are requested, the subpoenas are essential to
securing evidence necessary to resolve contract disputes. Some requests for
Board subpoenas, however , do not involve lack of cooperation by the parties.
A party may request a subpoena on behalf of a witness who needs to
demonstrate to an employer that he or she is testifying in an administrative
proceeding. In addition, some federal agencies, as a standard operating
procedure, require a subpoena before they will provide documents or
depositions in an appeal.

Institute of Museum and Library
Studies

Holds no administrative subpoena
authority.

Inter-American Foundation

Holds no administrative subpoena
authority.

Foreign Claims Comm ission

Foreign Claims Commission†

22 U.S.C. § 1631h

Debt claims against asserted
against Bulgaria, Hungary, or Rumania OR based upon an obligati on expressed
or payable in any currency

Foreign Claims Commission†

22 U.S.C. § 1623(c)

Settlement of International Claims:
Any member or employee of the commission may, by designation of the Chairman
of the Commission, require by subpoena the attendance and testimony of
witnesses and the production of all necessary books, papers, documents, records,
correspondence and other evidence.

Enforceable by U.S. district court

Comm ission on Security and
Cooperation in Europe

Commission on Security and Cooperation in Europe†

22 U.S.C. § 3004

In carrying out this Act . . [the
Commission] may require, by subpena or otherwise, the attendance and
testimony of such witnesses and the production of such books, records,
correspondence, memorandums, papers, and documents as it deems necessary

U.S. International Trade Comm
ission

U.S. International Trade Commission

19 U.S.C. §1333

Subpoenas are authorized for the
purposes of carrying out the Commission’s functions and duties in c onnect
ion with any inve stiga tion authorized by law.

The Commission may invoke the aid
of any district court, which may issue an order requiring compliance, failure
to obey may be punished as contempt of court.

The Commission must not disclose to
unauthorized persons confidential business information or business propri
etary infor mation gathered through subpoenas. The Commission routinely issues orders protecting
information obtained, and issues sanctions accordingly when such information is improperly handled.

A majority of the Commission must
authorize issuance, but any member may sign a subpoena; subpoenas may issue
with respect to papers, information, and testimony pertaining to any
Commission investigation.

The Inspector General is authorized
to require by subpoena, infor mation necessary in the performance of the
functions assigned by the Inspector General Act. (5 U.S.C. App. 3 § 6(a)(4)).

Subpoenas are enforceable by a
United States district court order. (5 U.S.C., App. 3 § 6(a)(4))

Right to Financial Privacy Act (12
U.S.C. § 3401).

1) Information sought must be
within the authority of the Inspector General. 2) Information sought is reasonably relevant to the
Inspector General’s inquiry. 3) Production of the information cannot be
unduly burdensome.

United States International Trade Commission†

19 U.S.C. § 1677f(7)(a)

Disclosure of proprietary
information under protective orders issued pursuant to the North American
Free Trade Agreement or the United States-Canada Agreement

(North American Free Trade
Agreement)

(North American Free Trade Agreement)†

19 U.S.C. § 3433

Authorizing any member of an extraordinary challenge
committee convened under paragraph 13 of article 1904 to summon witnesses and
require the production of documents, books, and records

National Comm ission on Electronic
Fund Transfers

National Commission on Electronic Fund Transfers†

12 U.S.C. § 2404

To require the attendance and
testimony of witnesses and the production of any evidence that relates to any
matter under investigation by the Commission

Enforceable by any court of the
United States within the judicial district within which the hearing is
conducted or within the judicial district within which such person is found
or resides or transacts business may (upon application by the Commission)
order such person to appear before the Commission to produce evidence or to
give testimony touching the matter under investigation. Any failure to obey
such order of the court may be punished by such court as a contempt thereof.

To require the production of all
information, documents, reports, answers, records, accounts, papers, and
other data and documentary evidence necessary in the performance of the
functions assigned by the IG Act.

In the case of contumacy or
refusal to obey, enforceable by order of any appropriate United States
district court.

Because LSC is not a government
agency, it is unclear that the Right to Financial Privacy Act applies to LSC
OIG subpoenas. Certain information
potentially subject to LSC OIG subpoena is protected from further disclosure
by the OIG, see Pub. L. 104-134, Sec. 509: (h) Notwithstanding section
1006(b)(3) of the Legal Services Corporation Act (42 U.S.C. 2996e(b)(3)),
financial records, time records, retainer agreements, client trust fund and
eligibility records, and client names, for each recipient shall be made
available to any auditor or monitor of the recipient, including any Feder al
dep artme nt or agency that is auditing or monitoring the activities of the
Corporation or of the recipient, and any independent auditor or monitor receiving Federal funds to
conduct such auditing or monitoring, including any audi tor or monitor of the
Corporation, except for reports or records subject to the attorney-client
privilege. (i) The Legal Services Corpora tion sha ll not discl ose any name
or document referred to in subsection (h), except to - (1) a Federal, St ate,
or local law enforcement official; or (2) an official of an appropriate bar
association for the purpose of enabling the official to conduct an
investigati on of a rule of professional conduct.

Subpoenas may be issued by any
member of the Board, any admini strat ive law judge appointed by the Board
under 5 U.S.C. §3105, and any Board employee designated by the Board (generally administrative
judges). Under this authority, the Board may require the attendance and
presentation of an individual’s testimony, the production of documentary or
other evidence, or the t aking of depositions from, and responses to written
interrogatories, by any such individual.

If the Board’s subpoena is not
obeyed, the Board may apply to the United States district to order
enforcement. The district court may punish any failure to obey the order of the court as a
contempt thereof. 5 U.S.C. §1204(c). The Board generally has fewer than five
cases a year in which it applies to a district court for enforcement of its
subpoena. Upon application to the Board by the Special Counsel, the Board may
also apply to the district court to enforce a subpoena issued by the Special
Counsel. 5 U.S.C. §1212(b)(3). This
provision has rarely been employed, and had not been employed recently.

The Board does not generally
issue subpoenas to compel the appearance of agency witnesses, that is,
witnesses employed by the respondent agency. Rather, the agency must arrange for
the appearance of its employees. If the employee does not make an appearance,
the administrative judge may impose sanctions under 5 C.F.R. §1201.41. Under
5 C.F.R. §1201.43, the administrative judge is granted discretion in imposing
sanctions as necessary to serve the ends of justice. In the case of federal
employees who are not employed by the respondent agency, and who do not
appear in response to an order by the administrative judge for the agency to
provide the wi tness pursuant to 5 C.F.R. §1201.33, the Board has determined
that obtaining a subpoena is a better course of action than imposing
sanctions. For more details, see Chapter 7, “Witnesses, Subpoenas, and Sworn
Statements,” in the Merit Systems Protection Board
Judge’s Handbook.

U.S. Merit Systems Protection Board†

5 U.S.C. §1221

At the request of an employee,
former employee or applic ant for employment . . . seeking corrective action
. . . the board shall issue a subpoena for the attendance and testimony of
any person if the Board finds t hat the testi mony or production requested is
not unduly burdensome and appears reasonably calculated to lead to the
discovery of admissible evidence.

“production of all information, documents, reports,
answers, records, accounts, papers, and other data and documentary evidence
necessary in the performance of the functions assigned by [the IG Act}…procedures
other than subpoenas shall be used by the Inspector General to obtain
documents and information from Federal agencies"

“in the case of contumacy or
refusal to obey, shall be enforceable by or der of any appropriate United States
district court”

Right to Financial Privacy Act, 12
U.S.C. Section 3401 et seq.

Request to issue IG subpoena is
reviewed by chain of command, by IG Counsel, and is signed by the IG or designee. DoJ
monograph is consulted as well as case law and standards in Special Agents'
Manual

“production of all information,
documents, reports, answers, records, accounts, papers, and other data and
documentary evidence necessary in the performance of the functions assigned
by [the IG Act}…procedures other than subpoenas shall be used by the Inspector
General to obtain documents and information from Federal agencies.

“in t he case o f contumacy or
refusal to obe y, shall b e enforceable by order of any appropriate United
States district court”

Right to Financial Privacy Act, 12 U.S.C. Section 3401 et seq.

Decision to issue IG subpoena is
reviewed by auditor’s or investigator’s supervisors, by IG Counsel, and by
the IG. Alternati ve means to obtain information are tried first, and sc ope
of subpoena is made as narr ow as possible, consistent with case needs

The NCUA has the ability to issue
subpoenas for documents and testimony in connection with the examination or
investigation of any federally insured credit union. The purpose of this
authority is to determine whether a credit union or an institution-affiliated
party (“IAP”) is complying with applicable law and regulations, and/or to
determine whether such credit union or party has violated, is violating or is
about to violate any provision of the Federal Credit Union Act, the NCUA’s
Board’s regulations, or other relevant statutes or regulations that may bear
on a party’s fitness to participate in the affairs of a credit union. This
subpoena power extends to any person or entity with knowledge of the affairs
of a credit union. This subpoena power extends to any person or entity with
knowledge of the affairs of the federally insured credit union, including the
ability to subpoena personal financial records and accounts (after compliance
with applicable Right to Financial Privacy Act notice requirements). This subpoena
authority also extends to any proceeding in connection with a claim for
insured deposits.

As set forth in the above cited
statutes, the NCUA enforces compliance with its subpoenas via application to
the United States District Court. The DOJ files the application to the United
States District Court. The DOJ files
the application on behalf of the NCUA, as the agency does not have
independent litigation authority.

The NCUA’s regulations set forth
that all information and documents obtained by the agency in the course of
any investigation are non-public, unless made a matter of public record by the
NCUA Board (usually in connection with the agency issuing a Notice of Charges
for formal enforcement action). While maintaining the non-public nature of
the testimony or documents obtained during an investigation, the NCUA will
share this information with other relevant law enforcement officials,
including but not limited to the DOJ. 12 C.F.R. Part 747.702. Moreover, the
NCUA complies with all applicable provision of the Right to Financial Privacy
Act of 1978 (“RFPA”), 12 U.S.C. §§3401-3422, with respect to obtaining
financial records from other non NCUA regulated institutions, and with
respect to releasing any information obtained during the course of its
investigation.

Pursuant to delegated authority
from the NCUA Board, the agency’s General Counsel may institute formal
investigati ve proceedings by the entry of an order indicating the purpose
of the investigation, and designating the persons conducting the
investigation. Upon issuance of the
Investigation Order the designated representative has the power to issue
subpoenas for testimony and documents. 12 C.F.R. Parts 747.703 and 747.803.

In Section 111 of the NLRA (29
U.S.C. §161), the Board is empowered to issue subpoenas to obtain and copy
documentary material, and to summon witnesses and take testimony in order to
obtain evidence that relates to any matter under
investigation or in question concerning any representation proceeding
conducted pursuant to 29 U.S.C. §159 or any unfair labor practice or
compliance proceeding conducted pursuant to 29 U.S.C. §160 of the NLRA. Any
party to representation or unfair labor practice proceedings is permitted to
make application to the Board for issuance of such subpoenas. The attendance
of witnesses and the production of evidence may be required to be made at any
place and from any place in the United States, Territory, or Possession

The Board’s subpoenas are not
self-enforcing. In the event that any person refuses to obey an
administrative subpoena issued by the Board pursuant to 29 U.S.C. §161(1),
the Board is authorized by 29 U.S.C. §161(2) to apply to any
federal district court for an order compelling compliance with the subpoena.

Each Board subpoena contains
language notifying the person served of his or her right pursuant to 29
U.S.C. §161(1) to petition the Board to revoke the subpoena, and the
statutory five day time limit within which such petition
must be filed. The Board will revoke the subpoena if the Board concludes
that: the evidence sought does not relate to any matter under investigation,
the evidence sought is not described with sufficient particularity, or the
subpoena is invalid for any othe r reason sufficient in law. 29 U.S.C.
§161(1); NLRB Rules and Regulations, as amended, 29 C.F.R. §102.31(b). If the Board makes appli cation to a
district court for subpoena enforcement, the subpoenaed party can proffer
legal and factual argument to the court as to why they believe the subpoena
should not be enforced. In appropriate circumstances, the following
additional statutes will provide protection to the privacy of persons whose
evidence is required by an NLRB administrative subpoena: The Right to Financial Privacy Act, 12 U.S.C.
§3401; The Privacy Act, 5 U.S.C. §552a ; The Fr eedom of Information Act, 5
U.S.C. §552.

Any party to a Board proceeding may
apply to the Board for an administrative subpoena. 29 U.S.C. §161(1); 29
C.F.R. §102.31(a). Such parties to
Board proceedings include, without limitation, the Regional Director in
whose Region the proceeding is pending, any person filing a charge or
petition under the NLRA, any person named as a respondent, as employer, or as
a party to a contract in any Board proceeding, any labor organization alleged
to be subject to unlawful activity, and counsel for the Board’s General
Counsel. 29 C.F.R. §102.8. Applications for subpoenas filed prior to a
hearing shall be filed with the Regional Director. Applications filed during
a hearing shall be filed with the administrative law judge (29 C.F.R.
§102.31) or hearing officer (29 C.F.R. §102.66(c)). There is no right to an
investigative subpoena (as contrasted with a hearing subpoena) available to
parties other than the General Counsel. The NLRB’s Regional Directors,
administrative law judges, and hearing officers grant
appli cations on behalf of the Board.

Federal Labor Relations Authority

The Federal Labor Relations
Authority (FLRA) is an independent agency responsible for administering the
labor-management relations pr ogram for 1.9 million Federal employees
world-wide. Its mission is to promote stable and constr uctive
labor-management relations that contribute to an efficient and effective
government.

Federal Labor Relations Authority†

5 U.S.C. §7132

Any member of the Authority, the
General Counsel, or the Panel or any Administrative Law Judge holds the
authority to issue subpoenas requiring the attendance and testimony of
witnesses and the production of documentary or other evidence from any place
in the U.S., etc.

16 U.S.C. § 2407 (b) sets forth
that United States may apply to District Court for enforcement.

Right To Financial Privacy Act
provides that if recipient of administrative subpoena fails to follow the
procedures mandated by the Act upon expiration of ten days from the date of
service or fourteen days from the date of mailing of the notice , the records or information
requested in the subpoena will be made available. (See 12 U.S.C. §
3405) Recipient may file a sworn statement and motion to quash in an
appropriate court within ten days from the date of service of the notice or
fourteen days from the date of mailing the notice to challenge the subpoena. Id. The Family Educational And Privacy Rights Act provides that institutions
that are subject to the Act will comply with a lawfully issued subpoena upon
the condition that parents and the students are notified of all such
subpoenas in advance of the compliance date by the educational institution or
agency. (See 20 U.S.C. § 1232g(b)(2)(B)). In addition, personal
information shall only be transferred to a third party on the condition that such party will not permit any
other party to have access to such information without the written consent of
the parents or student. (Id. at
(4)(B) and (7)(D)).

Limited to documentary evidence
including information, reports, answers, records, accounts, papers, and other data and documentary evidence
necessary in the performance of the functions of the OIG. However, authority
does not allow OIG to compel testimony. Additionally, OIG doe s not have
authority to subpoena documents maintained by the United States government or
its agencies, including NSF. (See 5 U.S.C. App. 3 at § 6(a)(4))

16 U.S.C. § 2407 (b) sets forth
that United States may apply to District Court In the case of contumacy or
refusal to obey, the subpoena is enforceable by order of any appropriate
United States district court. (Id., Inspector Generals Act at §
6(a)(4)).

See above.

Hearing procedures are set forth at
45 CFR Part 672. Guidance and procedures for the use, approval, drafting and
enforcement of OIG subpoenas is maintained wi thi n NSF/OIG.

Under 49 U.S.C. §1113, the NTSB,
through a Board member, administrative law judge, or employee designated by
the Chairman, may “require, by subpoena or otherwise, necessary witnesses and
evidence.” This authority is utilized during the investigation of an
accident, either at the field phase or during a public
hearing; study of transportation safety issues; and by an administrative law
judge, when necessary, during a hearing of an FAA enforcement action.

As stated in 49 U.S.C. §1113(a)(4),
the NTSB may enforce a subpoena by initiating a civil action in Federal
district court.

Protection of trade secrets is
outlined at 49 U.S.C. §1114(b) and 49 C.F.R. 831.6. In addition, documents
obtained during the course of an accident investigation that are deemed
pertinent but not appropriate for public dissemination are placed in the
“Official Use Only” docket. This section of the accident
investigation file contains material for internal use only, such as intra-
and interagency memorandums and correspondence, analytical reports and
various other types of documents (whether prepared by or for the Board),
autopsy protocols, pre-redacted material, and other items exempt from
disclosure under the Freedom of Information Act and the Privacy Act that
nevertheless should be retained by the Board.

In accident investigation matters,
the NTSB issues subpoenas for information necessary to the completion of a
thorough investigation and fulfillment of its statutory mandate to determine
the probable cause or causes of certain transportation accidents and to
conduct studies of transportation safety matters. As for subpoena
issued in the context of an aviation enforcement case, the law judge applies
the criteria set forth in 49 C.F.R. §821.20(a).

Neighborhood Reinvestment
Corporation

Holds no administrative subpoena
authority.

Nuclear Regulatory Commission

Nuclear Regulatory Commission Office
of Management and Budget

Section 161c. of the Atomic Energy
Act of 1954, 42 U.S.C. §2201(c).

Section 161c. provides: “In the performance of its
functions, the Commission is authorized to . . . make such studies and
investigations, obtain such information, and hold such meetings and hearings
as the Commission may deem necessary or proper to assist it in exercising any
authority provided in this Act, or in the administration or enforcement of
this Act, or any regulations or orders issued thereunder. For such purposes
the Commission is authorized to administer oaths or affirmations, and by
subpoena to require any person to appear and testify or appear and produce
documents, or both, at any designated place.” The Atomic Energy Act defines
the word “person” to include a corporation or other business entity, a
government agency (except for the Department of Energy), or a state or its agencies as well
as an individual. See Section 11s of the Atomic Energy Act, 42 U.S.C.
§2014(s).

A. Authority Section 233 of the Atomic Energy
Act of 1954, as amended, 42 U.S.C. §2281, provides: “In case of failure or
refusal to obey a subpoena served upon any person pursuant to subsection
161c., the district court for any district in which the person is found or
resides or transacts business, upon application by the Attorney General on
behalf of the United States, shall have jurisdiction to issue an order
requiring such person to appear and give testimony or to appear and produce
documents, or both, in accordance with the subpoena; and any failure to obey
such order of the court may be punished by such court as a contempt thereof.”
B. Process Generally, when the recipient of an
NRC subpoena advises the NRC that he or she intends to defy the subpoena, the
NRC must file a request with the Department of Justice (Civil Division,
Federal Programs Branch), asking the Department to file a petition to enforce
the subpoena. If the Department approves the request, the Federal Programs
Branch either handles the matter itself or refers the matter to the
appropriate U.S. Attorney’s Office.

Any information collected by an NRC subpoena may be used in two ways.
First, it may be used by the NRC regulatory staff to evaluate the activities
of licensees or others subject to NRC jurisdiction in order to protect the
public health and safety and the common defense and security, and to enforce
the Commission’s regulations and orders. Second, the information may be used
in connection with adjudicatory proceedings before the NRC’s administrative
tribunals to determine whether to authorize issuance of a li cense or license
amendment or to determine whether to enforce an NRC order. In either case,
the information may be protected from disclosure under the provisions of 10
C.F.R. §2.790 and in 10 C.F.R. Part 9. These regulations include the exemptions from disclosure under
the Freedom of Information Act and other statutes for the protection of
personal, privacy, proprietary, commercial and financial information. Any
person who submits material in response to an NRC subpoena may request that
the material be protected from release under a specific category of 10 C.F.R.
§2.790. If the NRC denies that request, the person who made the request (and
submitted the information) may challenge the decision in a federal district
court. In addition, if the subpoena is issued in an NRC administrative
proceeding, the person affected may apply for a protective order under 10
C.F.R. §2.740(c), to prevent disc losure of that information in the
proceeding.

A. Subpoenas issued by NRC
Administrative Tribunals An NRC administrative
tribunal may, at the request of a party, issue a subpoena in a judicial
proceeding. If the person who is named in the subpoena refuses to comply, the
Commission may ask the Department of Justice to seek enforcement of the
subpoena, as described above. B. Subpoenas Issued by the NRC Regulatory Staff
1. The Executive Director of Operations The Commission has delegated
authority to the Executive Director for Operations (“EDO”) to issue
subpoenas. See NRC Management Directive
9.17-02 (Sep. 12, 1991). The EDO has the authority to delegate that power to
lower officials. Id. at 9.17-04. The
Commission also has explicitly delegated the authority to issue subpoenas to
the Director of the Office of Nuclear Materials Safeguards and Safety
(“NMSS”), see NRC Managhement Directive 9.26, §0124-0212 (Oct. 27, 1989),
subject to review and concurrence from the Office of the General Counsel, id.
at §0128-0210, (Feb. 27, 1990). 2. The Office of Investigations. The Office
of Investigations (“OI”) has authority, as stated in the Commissioni’s
regulations, to issue subpoenas in furtherance of its investigations of
potential licensee wrongdoing. See 10 C.F.R. §1.36(e). The Director of OI has
delegated that authority to the Directors of each of the four OI Regional
Field Offices, subject to review of the proposed subpoena by the Office of the
General Counsel.

Nuclear Regulatory Commission Office of Management and Budget

Section 6(a)(4) of the Inspector
General Act of 1978.

Section 6(a)(4) gives each
Inspector General the authority to require by subpoena the production of all
information, documents, answers , records, accounts, papers, and other data
and documentary evidence necessary in the performance of the functions
assigned by the Inspector General Act. Subpoenas shall not be used by
Inspector General to obtain documents from Federal Agencies.

The Inspector General Act provides
that in the case of contumacy or refusal to comply with an Inspector General
subpoena, the subpoena shall be enforceable by order of any appropriate
United States District Court.

Generally, an Inspector General
subpoena will not be issued unless other means to obtain the required
information have been exhausted or appear impractical. Whenever the Inspector General elects to
use a subpoeena to obtain financial records from a financial institution, the
Inspector Genereal must comply wiwth the Right ot Financ ial Pr ivacy Act of
1978. The Act requires government agencies seeking to subpoena financial
records to notify the financial institution’s customer that a subpoena has
been filed, the purpose of the subpoena, and the customer’s right to file a
motion to quash the subpoena. Any records collected by an Inspector General
subpoena are used by Inspector General staff to evaluate the activities of NRC
employees and contractors or the operation of NRC programs and operations.
Any documents collected by a subpoena issued by the Inspector General are
protected from public release or disclosure in accordance withe the Freedom
of Information Act or Privacy Act.

In accordance with the Inspector
General Act, the Inspector General may issue a subpoena for document s. Infor mation sought must be reasonably
related to an investigation or audit withi n the Inspect or Gene ral’s
jurisdicti on and must be defined and limited to that necessary for the
investigati on or audit. Additionally, an Inspector General subpoena will not
be issued unless other means to obtain the required informat ion have been
exhausted or appear impractical. All proposed Inspector General subpoenas are
reviewed by the appropriate Assistant Inspector General, the Deputy Inspec
tor General, and the General Counsel to the Inspector General to ensure
compliance with all legal requirements prior to the subpoena being signed
by the Inspector General.

Permits the Commission in any
proceeding before it to order testimony to be taken by deposition and to
compel the appearance of witnesses and the production of books, papers, or
documents. Permits Commission judge on the application of any party to issue subpoenas requiring the appearance
of witnesses or the production of evidence

Upon failure to comply w/subpoena,
the Commission by its counsel may initiate enforcement proceedings in the
appropriate district court (with assistance from the U.S. Attorney’s office)

The Act requires that Commission
hearings and records be open to the public. Section 15 of the Act provides that the Commission may issue orders
where appropriate to protect the confidentiality of trade secrets. The
Commission’s ALJ may revoke or modify a subpoena in order to protect claims
of privilege. (See 29 C.F.R. §
2200.11)

Section 12(g) of the Act permits the
Commission to make necessary rules for the orderly transaction of its
proceedings (see scope of applicable procedural rules related to agency’s
subpoena authority in section below). Unless the Commission has adopted a
different rule, its proceedings are conducted in accordance with the Federal Rules of Civil
Procedure. The party to whom the subpoena is issued is responsible for its
service. A subpoena may be served by any person who is not a party and is not
less than 18 years of age. Service may
be made by service on the person named, by certified mail return receipt
requested, or by leaving a copy at person’s principal place of business or at
the person’s residence. Person served with a subpoena may within 5 days move
to revoke or modify the subpoena. Persons compelled to submit data or
evidence are entitled to re tain or procure copies of transcripts of the data
or evidence submitted by them. Other issuance standards, qualifiers and
procedures are in accordance with the Federal Rules
of Civil Procedure.

Office of Governmental Ethics

Holds no administrative subpoena
authority.

Office of Personnel Management
(OPM)

Office of Personnel Management (OPM)

Inspector General Act, section
6(a)(4), which provides that the Inspector General may: “Require by subpoena
the production of all information, documents, reports answers, records,
accounts, papers, and other data and documentary evidence necessary in the
performance of the functions assigned by this Act,
which subpoena, in the case of contumacy or refusal to obey, shall be
enforceable by order of any appropriate United States district court. . .”

Since the Inspector General Act
limits the scope of an inspector general’s audit and investigative authority
to programs of his respective agency, at OPM our subpoenas are issued
primarily in relationship to the Federal Employees Health Benefits Program
and the federal retirement annuity program.

Inspector general subpoenas are
enforceable by any appropriate United States district court.

The subject of an investigation is
notified of the issuance of a subpoena only when financial records are
covered by the Right to Financial Privacy Act, 12 U.S.C. §§3401-3422. Under
that Act, absent a court order pursuant to §3409, the subject must be
provided with prior written notice of the purpose and scope of the subpoena
and the opportunity to challenge the
subpoena in a federal district court. No notice is required if the inspector
general is seeking certain limited identifying information on the account.
Once subpoenaed records are received by an inspector general and become part
of a system of records maintained by his or her respec tive agency, they are
subject to the Privacy Act, 5 U.S.C. §552a exchangeable without the subject’s
permission only for a law enforcement purpose or routine use prescribed by
agency regulations.

There are three criteria that must
be met for issuance and enforcement of an inspector general subpoena: 1) the
audit of investigation must be within the statutory authority of the
Inspector General; 2) the information sought must be reasonably relevant to the
investigation or audit; and 3) the demand may not be unreasonably broad or
burdensome. Prior to issuance, all applications for subpoenas are reviewed by
the Assistant Inspector General for Investigations (or Audits if issued
pursuant to an audit), the Assistant Inspector General for Legal Affairs, the
Deputy Inspector General and the Inspector General to assure these criteria
have been met.

Office of Personnel Management (OPM)

42 U.S.C. § 1973g

Upon the request of the applicant
or the challenger or, on its own motion, the Civil Service Commission.

Peace Corps

Peace Corps

Holds no administrative subpoena
authority, excluding the Inspector General authority granted in Section 6(a)(4) of the Inspector

Pension B enefit

General Act of 1978.

Guaranty Corporation

(Peace Corps Inspector General
Exercises authority similar to those of other Inspector

Pension Benefit Guaranty Corporation Office of Inspector General

Generals under the Act.)Inspector
General Act of 1978 as amended, 5 U.S.C. App. 3

May obtain documentary evidence for
both investigations and audit.

Enforc ement action filed in the
appropriate U.S. District Court by DOJ, with assistance from IG counsel.

No requirement to notify individual
that OIG is seeking records

OIG has authority to “require by
subpoena [sic] the production of al information, documents reports, answers,
records, accounts, papers, and other data and documentary evidence necessary
in the performance of functions assigned by this Act” App. 3, §6(a)(4)

Pension Benefit Guaranty Corporation

Right to Financial Privacy Act
(RFPA), 12 U.S.C. 3401-3420.

Financ ial records of individuals
and partnerships of 5 or fewer individuals may be obtained; written notice to
customer and opportunity to challenge subpoena must precede document release

If OIG complies with notification
and customer does not file challenge within statutory timeframe, OIG entitled
to records. If the financial institution doe s not comply with the subpoena,
DOJ files an enforcement action in the appropriate U.S. District Court with
assistance from IG counsel.

OIG must serve the customer a copy
of the subpoena and form documents to challenge the subpoena. If a challenge
is filed, U.S. District Court judge must determine whether OIG entitled to
obtain records.

OIG is entitled to records if there
is “substantial compliance” with the provisions of RFPA, and there is a
“demonstrable reason to believe that the law enforcement inquiry is
legitimate and a reasonable belief that the records are relevant to the
inquiry” (12 U.S.C. §3419(c)).

Authority limited to the
investigations of violations of 39 U.S.C. 3005(a), the Postal Service false
representations and lottery laws. New
sweepstakes and skill contest restrictions are incorporated by reference in
39 U.S.C. 3001.

Enforcement by Attorney General in
district court where recipient resides, does business, or may be found. 39
U.S.C. § 3016(c) The Right to Financial Privacy Act, 12 U.S.C. § 3405, provides
that certain notice must be given when seeking bank records about an
individual. Records obtained by means of this authority are exempted from
disclosure under the FOIA. 39 U.S.C. § 3016(d), 39 C.F.R. § 913.4. To the
extent applicable here, the USPS is also specifically prohibited from
disclosing any names or addresses of postal patrons or other persons under 39
U.S.C. § 412.

Postmaster General subpoenas must
be issued only where: (a) specific case with identified entity or individual
(b) appropriate supervisory and legal review of request, and (c) no
delegation of authority below USPS Deputy General Counsel. Judicial Subpoenas
issued where Judicial Officer considers recor ds relevant or material to
existing proceeding.

United States Postal Service Office of Inspector General

The USPS Office of the Inspector
General exercises only the basic subpoena authority found in the Inspector
General Act of 1978, 5 U.S.C. app. 3.

United States Postal Service†

18 U.S.C. § 3061(1)

Authority of the Postal Inspector
and other Postal Service agents to serve subpoenas issued under the authority
of the United States in investigating criminal matters related to the postal
service and the mails

“To require by subpoena the
production of all information, documents, reports, answers, records,
accounts, papers, and other data and documentary evidence necessary in the
performance of the functions assigned by this Act, which subpoena, in the
case of contumacy or refusal to obey, shall be enforceable by or der of any
district court; Provided that procedures other than subpoenas shall be used by the Inspector
General to obtain documents and information from Federal agencies.”

The OIG files an action in federal
district court for summary enforcement of its subpoena

No notification requirements.
Records obtained from subpoenas are treated in accordance with the agency’s
system of records.

Disclosure of customer’s financial
institution financial records when required in connection with a law
enforcement inquiry.

The OIG files an action in federal
district court for summary enforcement of its subpoena.

At or before the time of service of
an administrative subpoena upon a financial institution for records covered
by the Act, the IG must serve upon the individual whose records are sought a
customer notice, statement of customer rights under the RFPA, customer
consent and authorization for access to financial records, instructions for
completing and filing customer challenge motions and sworn statement, motion
for order pursuant to customer challenge provisions of the RFPA, and sworn
state ment of movant. The customer has
a 10 days [14 days if service by mail] in which to give consent or to
challenge government access to their financial records.

Securities Act Se ction 19(b) provides
that any member of the Commission, or any officer designated by the
Commission, may subpoena witnesses, take evidence, and require the production
of documentary evidence deemed relevant or material to an investigation under
the Act. The attendance of witnesses
and production of documents may be required from anywhere in the United State
s or any Territory at any desig nated place of hearing. In addition, under Se
ction 20(a), when the Commission learns that any provision of the Securities
Act or any rule or regulation has bee n or is about to be violated, the
Commission may require persons to file a statement in writing or under oath,
as to the facts and circumstances concerning the matter under investigation.

Securities Act Se ction 22(b)
provides that in the case of refusal to obey a subpoena by any person, a
court may issue an order requiring the person to appear before the
Commission, or an examiner designated by it, to produce or give evidence.
Failure to obey such an order may be punished by contempt. In addition, Secti
on 20(c) provides the U.S. district courts with jurisdiction to enforce
compliance with any Commission order issued pursuant to the Securities
Act.

Every witness in a Commission
investigation testifying pursuant to a subpoena receives a copy of SEC Form
1662 - the Commission’s “Supplemental Information Form.” This form provides
information on and including Privacy Act notices, the Fifth Amendment, the
right to counsel, false statements and documents, perjury, transcript
availability, going off the record and additional procedures for submitting
statements to the Commission. When the
Commission subpoenas “financial records” of a “customer” at a “financial
institution,” the Commi ssion provides the required notices under the Right
to Financial Privacy Act (RFPA). The Commissi on’s Divi sion of Enforcement
has prepared an “RFPA Manual” to assist its staff when preparing such
subpoenas. Division policy requires that subpoenas and cert ificates of compliance must be signed by a
staff member at the GS-15 or higher level. In order to rely on the exemption
contained in RFPA Section 1113(h), it is the policy of the Division of
Enforcement that Division staff must obtain the consent of the Division
Director. Before noti ce to a customer
can be delayed pursuant to RFPA Section 1109 or Exchange Act Section 21(h),
the staff must obtain Commission consent to seek the required court order.
Under Section 2703 of the Electronic Communications Privacy Act (ECPA), 18
U.S.C. 2703, if a governmental entity uses an administrative subpoena to seek
the contents of electronic communications that have been in either electronic
storage for over 180 days or in a remote computing service, prior notice to
the services’ subscriber or customer is required. Under Section 2705, there is a procedure for delaying
the subscriber / customer notifi cation upon written certification by a
supervisory official. The Division of Enforcement has prepared an ECPA
procedures outl ine for use when the Commission staff is seeking information
or records from persons who provide computerized services to the public.

Subpoenas are served in accordance
with the procedures contained in Rule 232 of the Commissi on’s Rule s of
Practice, 17 CFR 201.232. See 17 CFR 203.8 (“[s]ervice of subpoenas in formal
investigative proceedings shall be effected in the manner prescribed by Rule
[of Practice] 232(c)”). Section 203.7 of the Commission’s Rules Relating to
Investigations contains additional provisions descr ibing the ri ghts of
witnesses in Commissi on investigations. 17
CFR 203.7. The Commission has delegated authority to the Director of the
Division of Enforcement to institute subpoena enforcement proceedings in
federal district court. 17 CFR 200.30-4(a)(10). Typically, the Commission
authorizes the issuance of subpoenas by issuing an “Order Directing Privat e
Investigat ion and Designating Officers To Take Testimony.” Generally, such authorizations are
limited to a particular investigation. The Commission order specifically
identifies each member of the staff authorized to issue a subpoena. If
additional staff are subsequently added to an investigation, the order will
be amended to include the names of the additional staff. Such orders are commonly referred to as
“formal orders.” The Commission issued 324, 345, 282, and 275 formal orders
in fiscal years 2001, 2000, 1999, and 1998 respectively. Because the number
of subpoenas can vary in any individual investigation, the number of
subpoenas is a multiple of the number of formal orders.

Under Exchange Act Section 21(b),
any member of the Commission, or any officer designated by the Commission,
may subpoena witnesses, compel their attendance, take evidence, and require
the pr oduction of documentary evidence deemed relevant or material to an
investigation under the Exchange Act. Such attendance and production may be required from anywhere in the
United States at any desig nated place of hearing. In addition, when conducting an
investigation under Section 21(a)(1), the Commission may require or permit
any person to file with it a statement in writing, under oath or otherwise,
as to all facts and circumstances concerning the matter to be investigated. Under Section 21(a)(2), the Commission may
use its subpoena authority when conducting an investigation pursuant to a
request from a foreign securities regulator.

Section 21(c) provides that in the
case of refusal to obey a subpoena by any person, any court of the United
States within the jurisdiction of the investigati on or proceedi ng may issue
an order requiring that the person appear before the Commission, or a
designated examiner, to produce or give evidence. Failure to obey such an
order may be punished by contempt. Section 21(c) also provide s that failure
or refusal to attend and justify or to answer any lawful
inquiry or to produce documents in response to a subpoena is a misdemeanor
punishable by fine and/or imprisonment or both.

Section 18(c) of the Public Utility
Holding Company Act is virtually identical to Section 21(b) of the Exchange
Act. In addition, Section 18(a) contains an authority provision similar to
Section 21(a) of the Exchange Act.

Section 25 of the Public Utility
Holding Company Act provides the U.S. district courts with jurisdiction to
enforce compliance with any Commission order issued pursuant to the Act.
Section 18(d) of the Public Utility Holding Company Act is virtually
identical to Section 21(c) of the Exchange Act.

Section 18(c) of the Public Utility
Holding Company Act is virtually identical to Section 21(b) of the Exchange Act. In addition, Section
18(a) contains an authority provision similar to Section 21(a) of the
Exchange Act.

Section 25 of the Public Utility
Holding Company Act provides the U.S. district courts with jurisdiction to enforce
compliance with any Commission order issued pursuant to the Act. Section
18(d) of the Public Utility Holding Company Act is virtually identical to
Section 21(c) of the Exchange Act.

The authority under Section 321(a)
of the Trust Indenture Act is essentially identical to that in the Securities
Act.

Section 321(a) provides that the Commission’s
powers to enforce the Trust Indenture Act and any rules, regulations or
orders issued pursuant to the Act are the same as those in Sections 20 and
22(b) of the Securities Act.

Same as above description for the
Securities Act.

Same as above description for the
Securities Act except that the Commission has not delegated authority to
institute subpoena enforcement actions under the Trust Indenture Act.

Section 42(b) of the Investment
Company Act is virtually identical to Section 21(b) of the Exchange Act. In addition, Section 42(a) contains an
authority provision similar to but somewhat more limited than Section 21(a)
of the Exchange Act.

Section 42(c) of the Investment
Company Act contains enforcement provisions virtually identical to Section
21(c) of the Exchange Act. Section 44
of the Investment Company Act provides the U.S. district courts with
jurisdiction to enforce compliance with any Commission order issued pursuant
to the Act.

Section 209(b) of the Investment
Advisers Act is virtually identical to Section 21(b) of the Exchange Act. In
addition, Section 209(a) contains an authority provision similar to Section
21(a) of the Exchange Act.

Section 209(c) of the Investment
Advisers Act contains enforcement provisions virtually identical to Section
21(c) of the Exchange Act. Section 214 of the Investment Advisers Act
provides the U.S. district courts the jurisdiction to enforce compliance with
any Commission order issued pursuant to the Act.

The Commission’s Rules of Practice
provide that the powers of a hearing officer include issuing subpoenas
authorized by law and revoking, quashing, or modifying any such
subpoena. Rule of Practice 111(b), 17
CFR 201.111(b). In connection with any hearing, a party may request the
issuance of subpoenas requiring the attendance and testimony of witnesses at
the designated time and place of hearing, and subpoenas requiring the
production of documentary or other tangible evidence returnable at any
designated time or place. 17 CFR 201.232(a).

Subpoenas issued by a hearing
officer are enforceable in federal district court under the rele vant
provision of the law authorizing the proceeding. See, Securities Act Se ction 22(b);
Exchange Act Section 21(c); Public Utility Holding Company Act Section 18(d);
Investment Adviser Act Secti on 209(c); Investment Company Act Section 42(c);
and Trust Indent ure Act Sect ion 321(a). Contemptuous conduct by any person
before the Commission or a hearing officer during any proceeding is grounds for (i)
exclusi on of that person from such hearing, or any portion thereof; and/or
(ii) summary suspension of that person
from representing others in the proceeding in which such conduct occurred for
the duration, or any portion, of the proceeding. 17 CFR 201.180(a). See generall y, Rule 180 of the
Commission’s Rules of Practice, 17 CFR 201.180.

Unless made on the record at a
hearing, requests for issuanc e of a subpoena are required to be made in writing
and served upon each party . Rule 2
32(a) of the Rules of Practice, 17 CFR 201.232(a). Any person to whom a subpoena is directed
or who is an owner, creator or the subject of the documents that are to be
produced may, under certain circumstances, request that the subpoena be
quashed or modified. Such requests are to be made by application Rule
232(e)(1), 17 CFR 201.232(e)(1). If compliance with the subpoena would
be unreasonable, oppressive or unduly burdensome, the hearing officer or the
Commission shall quash or modify the subpoena, or may order return of the
subpoena onl y upon specified conditions. Rule 232(e)(2), 17 CFR
201.232(e)(2).

The standards for issuance of
subpoenas in connection with hearings are contained in Rule 232(b) of the
Commission’s Rule s of Practice. This provision, based upon Sect ion 555(d)
of the Administrative Procedure Act, 5 U.S.C. 555(d), states: “Where it
appears to the person asked to issue the subpoena that the subpoena sought
may be unreasonable, oppressive, excessive in scope, or unduly burdensome, he
or she may, in his or her discr etion, as a condition precedent to the
issuance of the subpoena, require the person seeking the subpoena to
show the general relevance and reasonable scope of the testimony or other
evidence sought. If after
consideration of all the circumstances, the person requested to issue the
subpoena determines that the subpoena or any of its terms is unreasonable,
oppressive, excessive in scope, or unduly burdensome, he or she may refuse to
issue the subpoena, or issue it only upon such conditions as fairness
requires. In making the foregoing determination, the person issuing the
subpoena may inquire of the other participants whether they will stipulate to
the facts sought to be proved.” Additional procedures for the unavailabili ty
of a hearing officer, service, tender of required fees, appli cations to
quash or modify, and witness fees and mileage are set forth in the Rules of
Practice at 201.232(a), (c), (d), (e), and (f), respectively.

Section 6(a)(4) of the Inspector General Act (IG Act)
provides that the Inspector General may subpoena all information, documents,
reports, answers, records, accounts, papers, and other data and documentary
evidence necessary in the performance of the functions assigned by the Act.

Under Section 6(a)(4) of the IG Act, subpoenas are
enforceable by or der of any appropriate United States district court.

The Inspector General (IG) provides Privacy Act notices
in conjunction with the issuance of a subpoena. When the IG subpoenas “financial records”
of a “customer” at a “financial institution,” the IG provides the required
notices under the Right to Financial Privacy Act (RFPA).

It is the practice of the IG’s office that each subpoena is
prepared by an attorney and reviewed and signed by the Inspector
General.

Production of all information,
documents, reports, answers, records, accounts, papers, and other data and
documentary evidence (regardless of medium) necessary for the performance of
the functions assigned under the Inspector General Act (essentially a
subpoena duces tecum).

In case of refusal to obey,
enforcement is obtained by order of any appropriate U.S. district court.

Notification requirements of ten
days from the date of service or fourteen days from the date of mailing of
notice apply when records at a financial institution are sought of customers
covered by the Right to Financial Privacy Act, 12 U.S.C. §§ 3401, et seq.
Customers have a right to challenge in an appropriate U.S. district court
during the notice period.

The scope of IG subpoenas and
methods of service are promulgated in 13 C.F.R. §§ 101.302­101.303. Internal
standards and procedures have been issued in a SBA Office of Inspector
General Manual.

Small Business Administration*

SBA Regulations (13 C.F.R. §
134.214)

Upon the request of a party or upon
the Judge’s own initiative, the Judge may issue a subpoena requiring a
witness to appear and testify or to produce particular documents.

O HA has n o enforcement powers or
remedies.

A request for the issuance of a
subpoena must be filed and served on all parties. It must clearly identify
the witness, the documents to be subpoenaed, and the relevance of the documents or
testimony sought. A party obtaining a subpoena must serve the subpoena by
personal delivery and file and ser ve a copy of the subpoena and affidavit of
service with all parties within 2 days of service. With respect to privacy
protections, the public has no access to information subject to a Protective
Order, propri etary or confidentia l infor mation withheld in accordance with
Se ction 1 34, or information excluded from disclosure by law or regulation.
13 C.F.R. § 225.

The Standard for issuance of a
subpoena is relevance to the issues to be adjudicated. A motion to limit or quash the subpoena may
be filed and re sponded to, but no oral argument will be heard,
unless the Judge decides otherwise.

The Administration may investigate
to determine whether a licensee or other person has engaged in any conduct
consti tuting a violation of the Act. For the purpose of any investigation
regarding such a violation, the Administration may compel the attendance of
witnesses, take evidence, and re quire production of any books, papers, and
documents, which are relevant to the inquiry. Attendance
of witnesses and production of documents may be required from any place in
the United States.

The Administ ration may invok e the
a id of any court of the United States within the appropriate jurisdiction in
requiring the testimony of witnesses or the production of documents

There are currently no implementing
regulations or procedures. Investigations are generally referred to the OIG.

N/A

Small Business Administration†

15 U.S.C. § 687a

Administration may subpoena
witnesses and documents relevant to investigati on of compliance with
provisions for small business investment companies

Small Business Administration†

15 U.S.C. § 687b

Administration may subpoena
witnesses and documents relevant to investigation of compliance with
provisions for small business investment companies

The Administration may invok e the
aid of any court of the United States within the jurisdiction of which such
inve stigation or proceeding is carried on, or where such person resides or
carries on business, in requiring the attendance and testimony of witnesses
and the production of books, papers, and documents; and such court may issue
an order requiring such person to appear before the Administration, there to
produce records, if so ordered, or to give testimony touching the matter
under investigation. Any failure to obey such order of the court may be
punished by such court as a contempt thereof.

Small Business Administration†

15 U.S.C. §634

(b)(11) authorizes the
Administrator to make such investigations as necessary to determine whether a
recipient of or participant in any assistance under this chapter or any other
person has engaged or is about to engage in any acts or practices which constitute
or will constitute a violation of any provision of this chapter, or of any
rule or regulation under this chapter, or of any order issued under this
chapter. The Administration shall permit any person to file with it a
statement in writing, under oath or otherwise as the Administration shall
determine, as to all the facts and circumstances concerning the matter to be
investigated. For the purpose of any investigation, the Administration is
empowered to administer oaths and affirmations, subpena witnesses, compel
their attendance, take evidence, and require the production of any books, papers, and documents which are
relevant to the inquiry. 15 U.S.C. §634 (11).

Such attendance of witnesses and
the production of any such records may be required from any place in the
United States. In case of contumacy by, or refusal to obey a subpena issued
to, any person, including a recipient or participant, the Administration may
invoke the aid of any court of the United States within the jurisdiction of
which such investigation or proceeding is carried on, or where such person
resides or carries on business, in requiring the attendance and testimony of
witnesses and the production of books, papers, and documents; and such court
may issue an order requiring such person to appear before the Administration,
there to produce records, if so ordered, or to give testimony touching the
matter under investigation. Any failure to
obey such order of the court may be punished by such court as a contempt
thereof. All process in any such case may be served in the judicial district
whereof such person is an inhabitant or wherever he may be found; 15 U.S.C.
§634 (11).

Smithsonian Institution

Smithsonian Institution

Holds no general subpoena
authority. The Smithsonian Institution is a trust instrumentality of the
United State s and is not in the Executive Branch, not is it an authority of
the Government. The Smithsonian Institution does not exercise any
administrative subpoena authority. Notwithstanding, Congress has chosen to
identify the Smithsonian Institution as a “designated Federal entity” under
Section 8G of the Inspector General Act of 1978, as
amended, 5 U.S.C. App. 3.

Production of all information,
documents, reports, answers, records, accounts, papers, and other data and
documentary evidence (regardless of medium) necessary for the performance of the functions
assigned under the Inspector General Act (essentially a subpoena duces
tecum).

In case of refusal to obey,
enforcement is obtained by order of any appropriate U.S. district court.

Notification requirements of ten
days from the date of service or fourteen days from the date of mailing of
notice apply when records at a financial institution are sought of customers covered by the Right to
Financial Privacy Act. 12 U.S.C. §§3402, et seq. Customers have a right to
challeng in an appropriate U.S. district court during the notice period.

Internal standards and procedures
have been issue in a TVA Office of Inspector General Handbook.

Miscellaneous

Additional

Authorities

Civil Rights Commission

Civil Rights Commission†

42 U.S.C. § 1975a(e)(2)

The Commission may issue subpoenas
for the attendance of witnesses and the production of written or other
matter. Such a subpoena may not require the presence of a witness more than
100 miles outside the place where the witness is found or resides or is domiciled
or transacts business, or has appointed an agent for receipt of service of
process.

The Attorney General may obtain an
enforcement order in U.S. district court.

Corporation of Foreign Security
Holders

Corporation of Foreign Security Holders†

15 U.S.C. §77dd

“The Corporation shall have power
to ... to require from trustees, financial agents, or dealers in foreign
securities information relative to the original or present
holders of foreign securities and such other information as may be required,
and to issue subpenas therefor.” 15 U.S.C. §77dd

Congressional-Executive Comm ission
on the People’s Republic of China

The Congressional-Executive Commission on the People’s
Republic of China†

22 U.S.C. § 6916

Subpoenas may be issued only
pursuant to a two-thirds vote of members of the Commission present and
voting. The subpoena may require the attendance and testimony of witnesses
and the production of books, records, correspondence, memoranda, papers,
documents, and electronically recorded data.

Equal Employment Opportunity Comm
ission

Equal Employment Opportunity Commission†

29 U.S.C. § 626

Subpoenas used in investigations
carried out under the Age Discrimination in Employment Act.

Federal Trade Comm ission &
Federal Energy Administration

Federal Trade Commission & Federal Energy
Administration†

42 U.S.C. § 6299

Energy conservation program for
consumer products other than automobiles: The Commission and the Secretary
may each sign and administer subpoenas for the attendance and testimony of
witnesses and the production of relevant books, records, paper, and other documents,
and may each administer oaths.

Enforcement available in U.S.
district court.

Foreign Claims Settlement Comm
ission of the United States

Foreign Claims Settlement Commission of the United
States†

50 App. U.S.C. § 2001

War claims (expires, September,
2003): Authority to require a person to appear and testify or produce
documents for the purpose of certain hearings, examinations, or
investigations

May bring enforcement action in
U.S. district court

General Services Administration

General Services Administration†

41 U.S.C. § 113

War Contractor Claims: contracting
agency may require the war contractor to submit information and comply with
audits as reasonably required to settle a termina tion claim.

Inspectors General

Inspectors General†

41 U.S.C. § 254d

Examina tion of r ecords of a contr
actor

National Indian Gaming Comm ission

National Indian Gaming Commission†

25 U.S.C. § 2715

Subpoenas may be issued in any
matter under consideration or investigati on (by a vote of not less than two
members).

(a) Authority.--The President shall
be entitled, by regulation, subpoena, or otherwise, to obtain such
information from, require such reports and the keeping of such records by,
make such inspection of the books, records, and other writings, premises or property
of, and take the sworn testimony of, and administer oaths and affirmations
to, any person as may be necessary or
appropriate, in the President's discretion, to the enforcement or the
administration of this chapter and the regulations issued under this chapter.
(b) Condition for use of authority.--The President shall issue regulations insuring
that the authority of this section will be used only after the scope and
purpose of the investigation, inspection, or inquiry to be made have been
defined by competent authority and it is assured that no adequate and
authoritative data are available from any Federal or other responsible
agency. **** (f) Definitions.--In this section: (1) The term
"person" includes an individual, corporation, partnership,
association, or any other organi zed group of persons, or legal successor or
representative of the foregoing, and includes the United States or any agency
thereof, or any other government, or any of its political subdivisions, or
any agency of any of the foregoing, except that no punishment provided by
this section shall apply to the United States, or to any such government,
political subdivision, or government agency. 10 U.S.C. §2507

(c) Penalty for noncompliance.--Any
person who willfully performs any act prohibited or willfully fails to
perform any act required by the provisi ons of subsection (a), or any rule,
regulation, or order thereunder, shall be fined under title 18 or imprisoned
not more than one year, or both.

10 U.S.C. §2507(c).(d) Limitations
on discl osure of information.--Informati on obtained under section (a) which
the Preside nt deems confidential or with reference to which a request for
confidential treatment is made by the person furnishing such information
shall not be published or disclosed unless the President determines that the withholding
thereof is contrary to the interest of the national defense. Any person who
willfully violates this subsection shall be fined under title 18 or
imprisoned not more than one year, or both.

10 U.S.C. §2507(d).(e)
Regulations.--The President may make such rules, regulations, and orders as
he considers ne cessary or appropriate to carry out the provisions of this
section. Any regulation or order under this section may be established in
such form and manner, may contain such classification and differentiations, and may provide
for such adjustments and reasonable exceptions as in the judgment of the
President are necessary or proper to effectuate the purposes of this section,
or to prevent circ umvention or evasion, or to facilitate enforcement of this
section, or any rule, regulation, or order issued under this section. 10
U.S.C. §2507(e).

Railroad Retirement Board

Railroad Retirement Board†

45 U.S.C. § 362

Railroad unemployment insurance:
For the purpose of any investigation or other proceeding relative to the
determination of any right to benefits, the Board has the power to require
the presence and testimony of witnesses, and the production of any evidence,
documentary or otherwise, that relates to any matter under investigation or
in question, before the Board, or any member, employee, or representative
thereof.

The Board may seek enforcement in a
U.S. district court, and refusal to comply may be treated as contempt of
court.

Surface Transportation Board

Surface Transportation Board†

49 U.S.C. § 721

The Board may subpoena witnesses
and records related to a proceeding of the Board.

Subpoena may be enforced in U.S.
district court, and refusal to comply may be punished as contempt.

Social Security Administration

Social Security Administration†

42 U.S.C. § 405(b)(1)

Federal old-age, survivors, and
disability insurance benefits: In the course of any hearing, investigation or
other proceeding, the commissioner may administer oaths and affirmations,
examine witnesses and receive evidence.

When the Attorney General or
the Assistant Attorney General in charge of the Antitrust Division has r
eason to believe that any person may be in the possession, custody or control
of any documentary material or have any information relevant to a civil antitrust
investigation he may, prior to the institution of a proceeding, issue in
writin g and serve upon that person a civil investigative demand.

Whenever a person fails to
comply with any CID, the DOJ may file in U.S. District Court and serve upon
such person a petition for an order of such court for the enforcement of the
CID. A CID recipient may file in U.S. District Court and serve upon the DOJ a
petition for an order modifying or setting aside such CID. In general, the
Federal Rules of Civil Procedure apply to such petitions.

CIDs may be served by any
antitrust investigator, or by any U.S. marshal, at any place within the
territorial jurisdiction of any court of the U.S. CID materials are exempt
from FOIA and, without the consent of the CID recipient, may only be used by
a duly authorized official, employee, or agent of the DOJ (or FTC) in
connection with a case, grand jury, or Federal administrative or regulatory
proceeding. Right to Financial Privacy Act, 12 U.S.C. §§3401-3422, provides for
notification to customers for financial records.

No CID may require the
production of material that would be protected from disclosure under the
standards applicable to subpoena issued by a court of the U.S. in aid of a
grand jury investigation or the standards applicable to discovery requests
under the Federal Rules of Civil Procedure. CIDs must be approved by the AG
or AAG for Antitrust: approval auth ority may not be delegated.

Department of Justice (Antitrust Division):

“Second Request” authority
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976: Section 7A of
the Clayton Act, 15 U.S.C. 18a as amended by Section 630 of Pub.L. No.
106-553, 114 Stat. 2762(2000). The authority to issue second requests is
found in 15 U.S.C. 18a(c). Rules implementing th e Act are found at 16 C.F.R.
Part 801 et seq. See 16 C.F.R. 803.20 (“Requests for additional in formation
or documentary material”)

Certain mergers and
acquisitions may not be consummated until the parties provide DOJ and the FTC
with premerger notification and observe a waiting period. During that waiting
period, either DOJ or the FTC “may require the subm ission of additional
information or documentary material relevant to the proposed acquisition”
from the parties. (This is referred to as issuing a “second request.”)

The premerger waiting period
is extended by issuance of a second request and continues to run until after
(generally 30 days after) compliance. The Antitrust Division has instituted
an Internal Appeal Procedure that enables a party to contest the breadth of a
second request or whether there has been compliance. See http://www.usdoj.gov/atr/ public/8340.htm. Under 15 U.S.C. 19a(g)(2), if a party fails
substantially to comply with a second request, a district court may order
compliance, extend the waitin g period until there has been compliance, and
grant other equitable relief.

A party filing a premerger
notification designates a person who is to receive notice of issuance of a
second request. 15 U.S.C. 18a(b) provides that any information or documentary
material pursuant to 15 U.S.C. 18a shall be exempt from FOIA and may be
relevant to any administrative or judicial action or proceeding. If a party
refuses to produce certain documents based on privilege claims, it must
submit a privilege log (see 17 C.F.R. 803.3).

If the staff investigating a
transaction concludes that it might raise competitive problems, the staff
drafts a second request. The Division
utilizes centralized high-level review of second requests prior to issuance,
with a focus on eliminating undue burden.
The Division recently announced details of its Merger Review Process
Initiative. The Initiative encourages
staff to be as aggressive as possible during the initial waiting period by
making voluntary requests from information and through early consultation
with the parties, and to use the knowledge th ereby gain ed to tailor Second
Requests as narrowly as possible to the
transaction and the goals of the investigation.

Authority provides the
Attorney General or the Attorney General’s designee authority to issue admin
istrative subpoenas for a limited category of information in criminal invest
igations of specified federal kidnaping, child pornography, sex abuse and
transpor tation for illegal sexual activity offenses, where the victim was
under eighteen. The statue includes the following requirements: (1) the
underlying investigation has to relate to an act or activity involving a
violation of Sections 1201, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A,
2260, 2421, 2422, or 2423 of Title 18, United States Code, when the victim
was a minor who had not attained the age of eighteen years: (2) the
subpoena can be issued only to a provider of an electronic communication
service or remote computing service: (3) the provider can be required to
disclose only the subscriber or customer’s : (a) name;(b) address; (c) local
and long distance telephone toll billing records; (2) telephone number or
other subscriber iden tity; (e) length of service; and (f) the types of
services the customer or subscriber utilized, which may be relevant to an authorized
law enforcement inquiry; and (4) the authority to issue admin istrative
subpoenas to obtain testimony is limited to requiring a custodian of records
to give testimony concerning the production and authentication of such
records. Th e Attorney General has delegated the admin istrative subpoena
power to all United States Attorneys, the
Assistant Attorney General in charge of the Criminal Division, and the
Director of the Federal Bur eau of Investigation. This auth ority may be
redelegated to Assistant U.S. Attorneys, Criminal Division trial attorneys,
and FBI Special Agents in Charge, Assistant Special Agents in Charge and Sen
ior Supervisory Resident Agents in Charge.

Title 18 U.S.C. 3486(c)
permits the Attorney General to invoke the aid of any court of the United
States within the jurisdiction of which the investigation is carried on or of
which the subpoenaed person is an inhabitant, or in which he car ries on
subpoenaed person is an inhabitant, or in which he car ries on business or
may be found, to compel compliance with the subpoena.

Title 18 U.S.C. 2703(c)(2)
provides that a governmental entity receivi ng records from a provider of
electronic communications service or remote computing service pursuant to an
administrative subpoena requesting the name, address, local and long distance
telephone toll billing records, teleph one number or other subscriber number
or identify, and length and type of service does not have to provide notice
to subscr iber or customer.

See procedures set out by FBI
Crimes Against Children Unit. FBI issues these subpoenas pursuant to AG
delegation order.

1) The Attorney General is
authorized to issue a civil investigative demand (CID) for documentary
material, interrogatory answers, and/or oral testimony that is relevant to “a
false claims law investigation.” See 31 U.S.C. §3733(a)(1). 2) A “false claims law investigation”
includes an inquiry under the FCA or any act of Congress enacted after
October 27, 1986 that prohibits false claims, bribery, or corruption
involving an officer or employee of the United States. See 31 U.S.C. §
3733(I)(1)-(2).

1) The Attorney General may
enforce a CID by filing a petition for enforcement in any judicial district
in which the non­complying person resides, is found, or transacts business,
see 31 U.S.C. §3733(j)(1). 2)The recipient of a CID ma y object by filing a
petition to modify or set aside the CID in any judicial district where the person
resides, is found, or transacts business. See 31 U.S.C. § 3733(j)(2).

1) Information obtained by a
CID may not be disclosed, except to certain designated parties. These parties include: (a) any Justice
Department (DOJ) attor ney or investi gator conducting a “false claims law
investigation;” (b) any DOJ attorney requiring such information in connection
with a case or proceeding; (c) Congress or any committee or subcommittee
thereof; (d) other federal agencies upon a showing of “substantial need;”
and, (e) any other officer or employee of the Untied States authorized under
regulations to be issued by the Attorney General. See 31 U.S.C.
§3733(i)(2)-(3). 2) Where a CID seeks any product of discovery, a copy of the
CID must be sent to the person from whom the discovery was obtained, and the
CID is n ot returnable for at least 20 days. See 31 U.S.C. §3722(a)(1),
(a)(2)(D). 3) Upon completion of the “false claims law investigation,” and
any subsequent case or proceeding, any documentary materials obtained by CID
must be returned to the party producing them. See 31 U.S.C. §3733(i)(4).

1) The Attorney General must
authorize each CID and may not delegate this function. See 31 U.S.C.
§3733(a)(1), (a)(2)(G). 2) A CID for materials must state: (a) the alleged
conduct and false claims law provision under investigation; (b) the specific
class of materials to be produced; (c) the date the materials are due; and
(d) the false claims law investigator to whom the materials should be
provided 31 U.S.C. §3733(a)(2)(A)-(B). 3) A CID for answers must state: (a)
the alleged conduct and false claims law provision under investigation; (b)
the specific interrogatories to be answered; (c) the date the answers are
due; and (d) the false claims law invest igator to whom the answers should be
provided. 31 U.S.C. §3733(a)(2),(A), (a)(2). 4) A CID for oral testimony must
state: (a) the alleged conduct and false claims law provision un der investigation;
(b) the general nature of the testimony to be provided; (c) the place, date
and time fo rthe testimony; (d) the false claims law investigator who will conduct the examination; (e)
that the person’s attendance is necessary to the invest igation; and, (f)
that the person may be accompanied by an attorney and any other
representative. See 31 U.S.C. § 3733(a)(2)(A), (a)(2)(D). 5) The Attorney
General must appoint a custodian to receive and to implement the confidentiality
restrictions covering any materials, answers, or transcripts obtain ed
pursuant to a CID. See 31 U.S.C. §3733(i)(1).

18 U.S.C. §3486, as
originally enacted by the Section 248a of the Health Insurance Portability
and Accountability Act of 1996, Pub.L.104-191. [Since 1996, Section 3486 has
been subjected to a series of amendments which expanded the reach of
administrative subpoenas to other areas of law: the sexual exploitation of
children, and the protective services provided by the Secret Service to the
President and others. For example, in 1998, §3486 was enacted to grant the
Attorney General additional administrative subpoena power, in cases involving
the sexual exploitation of children. Pub. L. 105­314, §606(a)(2). Th en in 2000, the provisions of §3486A
were folded into §3486, which was further revised to extend administrative subpoena
authority to the Secretary of the Treasury, to investigate threats against
the President, the President-elect, or former Presidents, and threat against
person receivi ng pr otective services from the Secret Service. Pub. L.
106-544 § 5(a),(b)(1) and (c).]

In any criminal invest
igation of a “federal health care offense” (which are enumerated in 18 U.S.C.
§24), the Attorney General may issue in writing and serve, a subpoena
requiring pr oduction or testimony. §3486 (a)(1)(A). At any time before the return date, the
person or entity subpoenaed may petition for an order modifying or quashing
the summons. Motion shall be made in
the U.S. District Court in which the person or entity resides or does business.
§3486(a)(5). The Attorney General has delegated authority to the Assistant
Attorney General for the Criminal Division and the United States Attorneys to
issue administrative subpoenas for health care fraud offense investigations.
These subpoenas may be issued by these officials or their design ees on their
own initiative, or in response to the request of investigative agencies, such
as the FBI.

In th e case of contumacy by
or refusal to obey a subpoena issued to any person, the Attorney General may
move in any district court where the investigation is carried on, or of which
the subpoenaed person is an inhabitan t or does business, or may be found, to
compel compliance with the subpoena. §3486(c).

I. No notification
requirements. May obtain an ex parte
order preventing the disclosure of the existence of the summons for 90 days,
renewable for additional 90 day periods for reasons listed in
§3486(a)(6)(B). Health information obtained under
this section “may not be used in, or disclosed to any person for use in, any
administrative, civil, or criminal action or investigation directed against
the individual who is the subject of the information unless the action or
investigation arises out of and is directly related to r eceipt of health
care or payment for health care or action involving a fraudulent claim
related to health” or if authorized by a court of competent jurisdiction.
§3486(e). II. Executive Order No. 13181, 65 Fed. Reg. 81321 (Dec. 30, 2000).
The Executive Order, titled “To Protect the Privacy of Protected Health
Information in Oversight Investigations,” provides U.S. government policy
concernin g protected health information discovered during the course of health oversight
activities. III. The disclosur e of medical records of substance abuse
patients is strictly limited by operation of 42 U.S.C. §290dd-2. IV.
Subpoenas issued under §3486 in the course of investigations of Federal
health care offenses are subject to all other limitations placed on the
production of evidence pursuant to compulsory process, for example: a) The
Right to Financial Privacy Act, 12 U.S.C. §3401 et seq., the Right to
Financial Privacy Act (RFPA). The RFPA auth orizes the use of administrative
subpoenas as a method to obtain from financial institutions the financial
records of the customers of those institutions. §§3402(2) and 3405. Various
provisions provide for notification to the customer
and limit disclosure of the financial information, except where prohibited by
this or anoth er federal statute. b) 5 U.S.C. §552a (Privacy Act): No
disclosure is permitted without th e prior written consent of the person to
whom the record pertains, unless permitted by one of twelve exceptions;
regulations are found at 28 C.F.R. Part 16, Subpart D. c) 5 U.S.C. §552(b)
(Freedom of Information Act exemptions). Regulations at 28 C.F.R. Part 16,
Subpart A. d) Protection of Cable Subscriber Privacy, 47 U.S.C. §55. e)
Wrongful Disclosure of Video Tape Rental or Sale Records, 18 U.S.C. §2710. f) 42 U.S.C. §2000aa­11(a)
(“Guidelin es for Federal offices and employees”), when documents are in the
possession of third parties. Regulations at 28 C.F.R. Part 59 (“Guidelin es
on Methods of Obtaining Documentary Materials Held by Third Parties”).

I. The subpoena can require:
1) production of records or other things relevant to the investigation 2)
testimony of the custodian of the records or other things required to be
produced concerning the production and authenticity of those things. §3486(a)(1)(B) II.
The subpoena shall describe the objects required to be produced and prescribe
a return date within a reasonable period of time within which the objects can
be assembled and made available. §3486(a)(2). III. The production of records
relatin g to a Federal health offense shall not be required more than 500 miles
from the place where the subpoena is served. §3486(a)(3). IV. Witnesses shall
be paid the customary fees for witnesses in U.S. Courts. §3486(a)(4). V.
Major cases interpreting the use of subpoenas under §3486 for the
investigation of Federal Health Care Offense:
In re Subpoena Duces Tecum
(Bailey, 228 F.3d 341 (4th Cir. 2000) In re Administrative Subpoena John Doe,
253 F.3d 256(6th Cir. 20001). FBI requests for issuance by U.S. Attorneys’
Office are governed by the gener al guidelines on investigation found in: 1. Attorney General Guidelines on
General Crimes, Racketeering Enterprise and Domestic Security/Terrorism
Investigations (March 21, 1989). 2. Internal FBI regulations found in the
Manual of Investigative Operations and Guidelines (MIOG), Part II, 10-8.2(1),
“Access to Transactional Information: Telephone Toll Records, Subscriber Listing
Information.” Very useful for obtaining documents during health care fraud
investigations.

For the purpose of any civil
investi gation which, in the opinion of the Attorney General, is necessary
and proper to enforce this section, the Attorney General or his designee are
empowered to administer oaths and affirmations, subpoena witnesses, take evidence,
and require the production of any books, papers, or other documents which the
Attorney General deems relevant or material to such investigation. The
attendance of witnesses and the production of documentar y evidence may be required from any
place in the United States, or any territory, possession, or commonwealth of
the United States, at any design ated place of hearing. 15 U.S.C. §78dd­2(d)(2).

In case of contumacy by, or
refusal to obey a subpoen a issued to, any person, the Attorney General may
invoke the aid of any court of the United States within the jurisdiction of
which such investi gation or proceeding is carried on, or where such person
resides or carries on business, in requiring the attendance and testimony of
witnesses and the production of books, papers, or other documents. Any such
court may issue an order requiring such person to appear before the Attorney General or his designee,
there to produce records, if so ordered, or to give testimony touching the
matter under investigation. Any failure to obey such order of the court may
be punished by such court as a contempt thereof. 15 U.S.C. §78dd­2(d)(3).

The Attorney General may make
such r ules relating to civil investigations as may be necessary or
appropriate to implement the provisions of this subsection. 15 U.S.C. §78dd­2(d)(4).
All process in any such case may be served in the judicial district in which
such person resides or may be found. 15 U.S.C. §78dd­2(d)(3)

For the purpose of any civil
investi gation which, in the opinion of the Attorney General, is necessary
and proper to enforce this section, the Attorney General or his designee are
empowered to administer oaths and affirmations, subpoena witnesses, take
evidence, and require the production of any books, papers, or other documents
which the Attorney General deems r elevant or material to such investigation.
The attendance of witnesses and
the production of documentar y evidence may be required from any place in the
United States, or any territory, possession, or commonwealth of the United
States, at any design ated place of hearing. 15 U.S.C. 78dd­3(d)(2).

In case of contumacy by, or refusal to obey
a subpoen a issued to, any person, the Attorney General may invoke the aid of
any court of the United States within the jurisdiction of which such investi
gation or proceeding is carried on, or where such person resides or carries
on business, in requiring the attendance and testimony of witnesses and the
production of books, papers, or other documents. Any such court may issue an order requiring such person
to appear before the Attorn ey General or his designee, there to produce
records, if so ordered, or to give testimony touching the matter under
investigation. Any failure to obey such order of the court may be punished by
such court as a contempt thereof. 15 U.S.C. 78dd­3(d)(3).

All process in any such ca se
may be served in the judicial district in which such person resides or may be
found. The Attorney General may make such rules relating to civil
investigations as may be necessary or appropriate to implement the provisions
of this subsection. 15 U.S.C. 78dd­3(d)(5).

“Whenever the Attorney
General has reason to believe that any person or enterprise may be in possession,
custody or control of any documentary materials relevant to a racketeering
investigation, he may, prior to the institution of a civil or criminal
proceeding,: issue a written demand “requiring such person to produce such
material for examination.” 18 U.S.C.
§1968(a).

The Attorney General “may
file, in the district court of the United States for any judicial district in
which such person resides, is found, or transacts business,” a petition to
enforce the civil investigative demand. 18 U.S.C. §1968(g). None.

Issuance of a Civil Investigative
Demand must be approved by the Organized Crime and Racketeering Section and
either the Attorney General, the Deputy Attorney General, the Associate
Attorney General, any Assistant Attorney General or any employee designated
by the Attorney General, 18 U.S.C. §§ 1961(10) and 1968. “No such demand shall - (1) contain any
requirement which would e held to be
unreasonable if contained in a subpoena duces tecum”... or “require the
production of any documentary evidence which would be privileged from
disclosure if demanded by a subpoena duces tecum.” 18 U.S.C. § 1968(c).

Department of Justice (Drug Enforcement Administration
[DEA]):

21 U.S.C. §876(a)

21 U.S.C. 876(a) provides
that: “[i]n an investigation relating to his functions under this subchapter
with respect to controlled substances, listed chemicals, tableting machines,
or encapsulating machines, the Attorney General may subpoena witnesses, compel
the attendance and testimony of witnesses and require the production of any
records (including books, papers, documents, and other tangible things which
constitute or contain evidence) which the Attorney General finds relevant material to the
investigation. The subpoena may be used to compel the attendance and
testimony of witnesses, and require the protection of any records (including
books, papers, documents, and other tangible things which constitute or
contain evidence) which the Attorney General finds relevant material to the
investigation.” The Attorney General
has delegated all functions vested in him by Controlled Substances ACT (CSA) to the DEA
Administrator, 28 C.F.R. §0.100, Subpart R. DEA’s Administrator has
redelegated his authority to issue administrative subpoenas to the following
DEA personnel: Chief Inspector; The Deputy Chief Inspector and Associate
Deputy Chief Inspector of DEA’s Office of Professional Responsibility;
Inspector; Special Agents in Charge; Associate Special Agents in Charge;
Associate Special Agents in Charge; Resident Agents in Charge: and Diversion
Program Managers, 28 C.F.R. §0.100, Appendix to Subpart R. The courts h ave consistently
upheld the validity of the DEA’s administrative subpoenas. See United States
v. Phibbs, 999 F.2d 1053 (6th Cir. 1993) (Government need not secure judicial
warrant before service of DEA administrative subpoenas); United States v.
Harrington, 761 F.2d 1482 (1th Cir. 1985) (subpoenas issued by DEA between
indictment and trial in drug-related pr osecution were legal where subpoenas
issued to third parties during continuing investigation and
were not running to indicted individuals); United States v. Mountain States Telephone
and Telegraph Company, 516 F.. Supp. 225 (D. Wyo. 1981) (issuan ce of
subpoena by Special Agent in Ch arge of DEA office was legitimate exercise of
authority provided to him); United States v. Hossbach, 518 F. Supp. 759 (E.d.
Pa. 1980) (use by DEA of administrative subpoenas in conducting criminal
investigation was valid.)

To enforce an administrative
subpoena served under 21 U.S.C. §876, the Attorney General “May invoke the
aid of any court of the United States...The court may issue an order
requiring the subpoenaed persons to appear before the Attorney General to
produce records, if so ordered, or to give testimony...Any failure to obey
the order of the court may be punished by the court as a contempt thereof.”
21 U.S.C. §876(c).

The DEA Agents Manual (Am)
explains that certain types of information otherwise subject to DEA’s
administrative subpoena power are protected from disclosure. The AM contains a detailed explanation of
the Right to Financial Privacy Act (RFPA), which limits the disclosure of
financial information by financial institutions, Under the RFPA, DEA may use
an administrative subpoena to obtain the name, address, account numbers an d
types of accounts of a customer of a financial institution without providing notice to the customer. In
order to obtain any other information, however, DEA must notify the cust omer
by person al ser vice or by mailing a copy of the subpoena to his last known
address. The customer is given ten
days from personal service or fourteen days from mailing to contest the
action. The only means of avoiding pr ior notification is by obtaining a
court order delayin g notification for an initial 90 days, with extensions in
90-day increments. The delay order may be obtained where there is a
“reasonable belief” that notification would 1) endanger the life or physical
safety of any person 2) result in flight from prosecution 3) result in the
destruction or tampering with evidence 4) result in the intimidation of a
potential witness 5) unduly delay a trial or
other judicial proceeding, or 6) otherwise seriously jeopardize and
investigation or official proceeding.
Federal laws governing access to stored wire and electronic
communications also provide protections to the public. Under 18 U.S.C.
§2703(c)(2), a provider of electronic communications service or remote computing
service can disclose only limited information without notice to the
subscriber in response to administrative subpoena served by a governmental
entity. Such information consists of the customer’s name, address, local and
long distance telephone connection records or records of session times and
durations, len gth of service and types of service utilized, telephone or
instrument number or other subscriber n umber or
identify, and means and source of payment for such service (including any
credit card or bank account num ber) of a subscriber. Other records
pertaining to the subscriber, including audit trails/logs, web sites visited
and identities of email correspondents, can on ly be obtain ed by search
warrant or court order. With prior
notice to the subscriber. DEA can also use an administrative subpoena to
obtain unopened e-mail (in storage more than 180 days) or opened email still
on the provider’s system. The n otice may be delayed for 90 days under the
same criteria listed above for information protected by the RFPA. Unopened
e-mail storage 180 days or less can on ly be obtain ed by serving a search
warrant.

The Attorney General can
issue administrative subpoenas to obtain testimony or materials that he finds
“relevant or material to” and investigation, 21 U.S.C. §876. The AM states
that the subpoena powers provided in the Controlled Substances Act “will be
used judiciously and with appropriate restraint.” AM §6614.23. The AM also states that subpoenas should be
used pr imar ily for obtain ing information or docum ents fr om business
entities. The AM directs employees serving an administrative
subpoena to have due regard for the convenience of the person or entity
served, and, insofar as possible, to permit compliance in a manner preferable
to them.

The Attorney General is authorized to issue
administrative subpoenas for a federal offense involving the sexual
exploitation or abuse of children. §3486(a)(1)(A)(i)(II). The Attorney
General delegated his authority to “issue and cause to be served administrative subpoenas” to
the Director, FBI, by Order No. 2421-2000, dated 4/05/2001. The Order provided that the Director may
redelegate his authority to Special Agents in Charge (SACs), Assistant
Special Agents in Charge (ASACs), an d Senior Supervisory Resident Agents
(SSRAs), as the Director “deems appropriate.” The redelegation occurred on
5/31/2001.

The Attorney General may request an order from the
district court in the district in which the investigation occurs or in which
the subpoenaed per son resides to compel compliance with the subpoena. Failure to comply with the court order may
be punished by the court as contempt. §3486(c).

No notification requirements. See 18 U.S.C.
§2703(c)(2). May obtain an ex parte order preventing the disclosure of the
existence of the summons for 90 days, renewable for additional 90 day periods
for reasons listed in §3486(a)(6)(B) and (C). Privacy protection required
under oth er statutes and regulations: 5 U.S.C. §552a (Privacy Act): No
disclosure is permitted without the prior written consent of the person to
whom the record pertains, unless permitted by one of twelve exceptions;
regulations are found at 28 C.F.R. Part 16, Subpart D. 5 U.S.C. §552(b)
(Freedom of Information Act exemptions). Regulations at 28 C.F.R. Part 16,
Subpart A. 42 U.S.C. §2000aa­11(a)
(“Guidelin es for Federal officers and employees”), when documents are in the
possession of third parties. Regulations at 28 C.F.R. Part 59 (“Guidelin es
on Methods of Obtaining Documentary Materials Held by Third Parties”). 20 U.S.C.
§ 1232g(b) (the Family Educational Rights and Privacy Act of 1974 (FERPA)
(the Buckley Amendment). Regulations are found at 34 C.F.R. Part 99. The
Buckley Amendment permits a federal government entity (e.g., the FBI) to
obtain education records, as defined in and protected by the statute (other
than unprotected directory information) from an educational institution that
receives federal funds. The parents
and the student must be notified in advance that the educational agency or
institution will comply with the subpoena. §1232g(b)(2)(B). A court (or other
issuing agency) may order nondisclosure to any person of the contents of or
the existence of the subpoena or nondisclosure of the information furnished
“for good cause shown,” §1232g(b)(1)(J).

The subpoena issued under this statute allows
production of records, other relevant items, or telephone toll records. Or, in the alternative, the custodian of
those records or other relevant items may be subpoenaed to address their
production and authenticity. The subpoena may require: (1) the production of
records or other things relevant to the investigation and the testimony of
the custodian of the things to be produced about their production and
authenticity, §3486(a)(1)(B); or (2) when directed to a provider of
electronic communication service or remote computing service, the subpoena
may require that the provider disclose only: the name, address, local and
long distance telephone toll billing records, telephone number or other subscriber
number or identity, and the length of ser vice of a subscriber to or customer
of such service, and the types of services the subscriber or customer
utilized wh ich may be relevant to a law enforcement inquiry,
§3486(a)(1)(C)(i); or require the custodian of records for that provider to
testify as to the production and authentication of the records or information
§3486(a)(1)(C)(ii). Use is governed by the gener al guidelines on
investigation found in: 1. Attorney
General Guidelines on General Crimes, Racketeering Enterprise and Domestic
Security/Terrorism Investigation (March 21, 1989). 2) Internal FBI
regulations found in the Manual of Investigative Operations and Guidelines (MIOG), Part II,
10-8.2(1), “Access to Transactional Information: Telephone Toll Records,
Subscriber Listing Information;” MIOG, part I, 7-20, “Administrative
Subpoenas in Child Abuse and Child Sexual Exploitation Cases” (publication of
section 7- 20 is pending revision reflecting amendments to 18 U.S.C. §3486(a)
by Pub.L. No. 106­544). Statute prohibits production of records beyond a
distance of 500 miles from the place where the subpoena was served.
§3486(a)(3). 45 C.F.R. §164.512(f) This regulation provides the minimum
circumstances under which law enforcement can obtain medical records from
health care providers by administrative
subpoena if the requested inform ation is: specific and limited in scope,
relevant and material to a legitimate law enforcement inquiry, and if
de-identified information can not be used. If state law is more stringent,
state law applies.

The Attorney General “may
subpoena witnesses, compel the attendance and testimony of witnesses, and
require the production of any records (including books, papers, documents,
and other tangible things which constitute or contain evidence) which the
Attorney General finds relevant or material to the investigation.” §876(a).
By Order No. 968-82, dated 1/28/82, reprinted at 47 Fed. Reg. 4989-01
(2/3/82), the Attorney General authorized the Director, FBI,
to investigate criminal law violations and granted him authority concur rent
with that of the Administrator, Drug Enforcement Administration (DEA). See 28
C.F.R. §0.85(a). The Director, FBI, has redelegated his authority to issue
administrative subpoenas to all Special Agents in Charge (SACs), Assistant
Special Agents in Charge (ASACs), and Supervisory Sen ior Resident Agents
(SSRAs) (28 C.F.R. App. To Subpart R, sec. 4) and to supervisors of drug
investigation squads (pending publication in the Federal Reg. by DEA).

The Attorney General may
request an order from the district court in the district in which the investi
gation occurs or the subpoenaed per son resides to compel compliance with the
subpoena. Failure to comply with the
court order may be punished by the court as contempt. §876(c).

12 U.S.C. §3401 et seq., the
Right to Financial Privacy Act (RFPA). [ The RFPA auth orizes the use of
administrative subpoenas as a method to obtain from financial institutions
the financial records of the customers of those institutions. §§3402(2) and
3405. Various provisions provide for notification to the customer and limit
disclosure of financial information, except where permitted by this or
another federal statute.] 18 U.S.C. §2701 et seq., the
Electronic Communications Privacy Act (ECPA), as amended by Pub. Law No.
107-56, Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001.
[ECPA, in relevant part, authorizes a governmental entity (e.g., the FBI) to
require a provider of a remote computing service to disclose to that entity,
the contents of any wire or electronic communication in a remote computing
service by use of an administrative subpoena if prior notice is given to the
subscriber or customer. §2703(b)(1)(B)(i). Delayed notice is available under
§2705. ECPA also authorizes a governmental entity (i.e., the FBI) to require
a provider of electronic communication service or
remote computing service to disclose to that entity the name, address, local
and long distance telephone connection records or records of session times
and durations, telephone or instrument numbers or other subscriber number or
identity, and length of service of a subscriber to or customer of such
services and the types of service the subscriber or customer used, as well as
means and source of payment for such service, including any credit card or
bank account number. §2703(c)(2). No notice to the customer is required.
§2703(c)(3), formerly, §2703(c)(1)(C).] 20 U.S.C. §1232g(b) (the Family
Educational Rights an d Privacy Act of 1974 (FERPA) (the Buckley Amendment).
Regulations are found at 34 C.F.R. Part 99. [The Buckley Amendment permits a federal
government entity (e.g., the FBI) to obtain education records, as defined in
and protected by the statute (other than unprotected directory information)
from an educational institution that receives federal funds. The parents and the student must be
notified in advance that the educational agency or institution will comply
with the subpoena. §1232g(b)(2)(B). A
court (or other issuing agency) may order nondisclosure to any person of the
contents of or the existence of the subpoena or nondisclosure of the
information furnished “for good cause shown.” §1232g(b)(1)(J).]

Relevance or materiality to
the investigation is required for issuance of the subpoena. §876(a). The
subpoena may require attendance of witnesses and production of records at any
designated place of hearing from any place in any state or from any place or
territory subject to United States jurisdiction. §876(a). 42 U.S.C. §2000aa­11(a)
(“Guidelin es for Federal officers and employees”), when documents are in the
possession of third parties. Regulations at 28 C.F.R. Part 59 (“Guidelin es
on Methods of Obtaining Documentary Mater ials Held by Third Parties”). Use
governed by the gener al guidelines on investigation found in: 1. Attorney
General Guidelines on General Crimes, Racketeering Enterprise and Domestic
Security/Terrorism Investigations (March 21, 1989). 2. Internal FBI
regulations found in the Manual of Investigative Operations and Guidelines
(MIOG), Part I, 281-7 through 281-7.4 (“Administrative Subpoenas”); Part II,
10-8. 1, “Con tents of Electronic Communications in Electronic Storage and
Part II, 10-8.2(1), “Access to Transactional Information:
Telephone Toll Records, Subscriber Listing Information,” Necessary to fulfill
responsibilities under 28 C.F.R. §0.85(a) to investigate violations of the
controlled substance laws.

“The Attorney General and any
immigr ation officer sh all h ave power to r equire by subpoena the
attendance and testimony of witnesses before
immigr ation officers and the production of books, papers, and documents
related to the privilege of any person to enter, reenter, reside in, or pass
through the United states or concernin g any matter which is material and relevant
to the enforcement of this Act and the administration of the Service, and to
that end may invoke the aid of any court of the Untied States.” [ The
Attorney General and Immigration officers may require by subpoena the
attendance and testimony of witnesses and the production of books, papers,
and documents related to the privilege of any person to enter, reenter,
reside in, or pass through the United States or concernin g any matter which
is material and relevant to the enforcement of this Act and
the administration of the Service. ]

“Any U.S. district court
within the jurisdiction of which the investigations or inquiries are being
conducted... may, in the even t of neglect or
refusal to testify before an immigration officer, issue an order, requiring
such persons to appear before an immigration officer, produce books, paper,
and documents, if demanded, and testify, and any failure to obey such order
of the court may be punished by the court as contempt thereof.”

12 U.S.C. §3401 et seq. (“The
Right to Financial Privacy Act”)

1) Docum ents to be produced
must be described with definiteness and reasonable time to produce must be allowed; 2) Interr ogation of
subpoenaed person to be confined to scope of proceedings involved; 3)
Prerequisite for issuance-reasonable basis for belief that INA violation
occurred. Sources: INS Operating Instructions (“OI”) 287.4; Investigations
Handbook §3-3.9.

Department of Justice (Immigration and Naturalization
Service [INS]):

INA §274A(e)(2)(C); 8 U.S.C.
§ 1324a(e)(2)(C); 8 C.F.R. § 274a2(b)(2)(B)(ii) This section also provides
for issuance of subpoenas by ALJs in formal proceedings initiated by the
Service. Cf. Also 274B(f)(2).

“In conducting investigations
and hearings under this subsection, immigration officers designated by the Commissioner
may compel by subpoena the attendance of witnesses and the production of
evidence at any designated place prior to the filin g of a complaint in a
case under paragraph (2).”

“In case of contumacy or
refusal to obey a subpoena lawfully issued under this paragraph... an
appropriate district court of the United States may issue an order requiring
compliance with such subpoena and any failure to obey such order may be
punished by such court as a contempt thereof.”

12 U.S.C. §3401 et seq. (“The
Right to Financial Privacy Act”).

1) Docum ents to be produced
must be described with definiteness and reasonable time to produce must be
allowed; 2) Interrogation of subpoenaed person to be confined to scope of
proceedings involved. 3) Consultation with U.S. Attorney or INS Attorney
advised before seeking subpoena issuance. Sources: OI 287.4; Special Agents
Field Manual, 33.30(a)(1).

Department of Justice (Immigration and Naturalization
Service [INS]):

INA § 274C(d)(1)(C); 8 U.S.C.
§1324c(d)(1)(C); 8 CFR §270.2(C)

“In conducting investigations
and hearings under this subsection, immigration officers designated by the
Commissioner may compel by subpoena the attendance of witnesses and the
production of evidence at any designated place prior to the filin g of a
complaint in a case under paragraph (2).”

“In case of contumacy or
refusal to obey a subpoena lawfully issued under this paragraph... an
appropriate district court of the United States may issue an order requiring
compliance with such subpoena and any failure to obey such order may be punished by such
court as a contempt thereof.”

12 U.S.C. §3401 et seq. (“The
Right to Financial Privacy Act”).

1) Docum ents to be produced
must be described with definiteness and reasonable time to produce must be
allowed; 2) Interrogation of subpoenaed person to be confined to scope of
proceedings involved; 3) Prerequisite for
issuance-reasonable basis for belief that INA violation occurred. Sources:
INS Operating Instructions (“OI”) 287.4; Investigations Handbook §3-3.9.

Department of Justice (Immigration and Naturalization
Service [INS]):

INA §287(a); 8 U.S.C. §
1357(a); 8 C.F.R. §287.4.

“Under any regulations
prescribed by the Attorney General, an officer or employee of the Service may
... execute and serve any order, warrant, subpoena, subpoena, summons, or
other process issued under the authority of the United States.”

“The officer requesting the
subpoena shall request the U.S. Attorney for the distr ict in which the
subpoena was issued to report negligence or refusal to appear and testify to
the U.S. district Court and to request such court to issue an order requiring
the witness to appear and to testify and to produce the books, paper or
documents designated in the subpoena.”

12 U.S.C. §3401 et seq. (“The
Right to Financial Privacy Act”)

The subpoena “shall command
th e person or entity to which t is address to attend and to give testimony
at a time or place specified... shall also command th e person or entity to
which it is addressed to produce the books, papers, or documents specified in
the subpoena... may direct the taking of a deposition before an officer of
the Service.” 8 CFR §287.4(b)(1),(2). Regulation also lists official
authorized to issue subpoenas.** **Officials Authorized to issue subpoenas:
District Directors, Deputy District Directors, Chief Patrol Agents, Deputy
Chief Patrol Agents, Officers-in Ch
arge, Patrol Agents in Charge, Assistant Directors for Investigations,
Supervisory Criminal Investigators (Anti-Smuggling), Regional Directors,
Service Center Directors, Assistant Directors for Examinations.

Department of Justice (Immigration and Naturalization
Service [INS]):

INA §335(b); 8 U.S.C.
§1446(b); 8 C.F.R. §§336.2(d)(1), 335.11

“The Attorney General shall
designate employees of the Service to conduct exami nations upon applicati
ons for naturalization. For such
purposes any such employee so design ated is hereby authorized to... require
by subpoena the attendance and testimony of witnesses, including applicant,
before such employee so designated and the production of relevant books,
papers, and documents...”

“Any district court of the
United States may, “in the event of neglect or refusal to respond to a
subpoena issued by any such employee so designated or refusal to testify
before such employee so designated issue an order requiring such person to
appear before such employee so designated, produce relevant books, papers,
and documents if demanded and testify; and any failure to obey such order of
the court may be punished by the court as contempt thereof.”

12 U.S.C. §3401 et seq. (“The
Right to Financial Privacy Act:)

1) Docum ents to be produced
must be described with definiteness and reasonable time to produce must be
allowed: 2) Interrogation of subpoenaed person to be confined to scope of
proceedings involved. Sources: OI 287.4.

Department of Justice (Immigration and Naturalization
Service [INS]):

INA §336(d); 8 U.S.C. 1447(d)

“The immigration officer
shall, if the applicant requests it at the time of filing the request for the
hearing, issue a subpoena for the witnesses nam ed by such applicant to
appear upon the day set for the hearing, but in case such witnesses cannot be
produced upon the h earing other witnesses may be summoned upon notice to the
Attorney General, in such manner and at such time as the Attorney Gener al may
by regulation prescribe.”

Such subpoenas may be
enforced in the same manner as subpoenas under section 335(b) (see above
provision)

12 U.S.C. §3401 et seq. (“The
Right to Financial Privacy Act”)

1) Docum ents to be produced
must be described with definiteness and reasonable time to produce must be
allowed; 2) Interrogation of subpoenaed person to be confined to scope of
proceedings involved. Sources: OI 287.4.

Upon application of a party
or by the Administrative Law Judge’s (ALJ) order, the ALJ may compel by
subpoena the attendance of witnesses and the production of evidence at any
design ated place or hearing.

An Administrative Law Jude
may apply through appropriate counsel to the appropriate distr ict court of
the United States for an order requiring compliance with the order or
subpoena. 28 C.F.R. §68.25(e).

None.

A party must make a showing
of general relevance of the evidence or testimony sought in the
subpoena. The subpoena is used to
obtain evidence or testimony in a determination of wheth er a violation under
the Immi gration Act has occurred.

“Upon being satisfied that a
witness will not appear and testify or produce documentary evidence that is
essential, the Immigration Judge shall issue a subpoena..” 8 C.F.R.
§3.35(b)(3)

“If a witness neglects or
refuses to appear and testify as directed by the subpoena served upon h im or
her in accordance with the provisions of this section, the Immigration Judge
issuing the subpoena shall request the United States Attorney for the
district in which the subpoena was issued to report such neglect or refusal
to the United States District Court and to request such court to issue an
order requiring the witness to appear and to testify and to produce the
[documents] designated in the subpoena.” 8 C.F.R. §3.35(b)(6)

None.

A party must make a showing
of general relevance of the testimony or other evidence sought. The subpoena is used to obtain evidence or
testimony in the adjudication of an application for relief under the Immi
gration and Nationality Act.

“Production of all
information, documents, reports, answers, records, accounts, papers, and
other data and documentar y evidence necessary in the performance of the functions assign ed by [the
IG Act]... procedures other than subpoenas shall be used by the Inspector
General to obtain documents and information from Federal agencies.” Id.

“In the case of contumacy or
refusal to obey, shall be enforceable by order of any appropriate United
states district court.” Id.

“The Inspector General acts
under the “auth ority, direction and control” of the Attorney General with
respect to issuance of subpoenas, which require access to sensitive in
formation concerning– (A)ongoing civil
or criminal investigations or proceedings; (B) undercover operations; (C) th
e identity of confidential sources, including protected witnesses; (D)
intelligence or counterin telligence matters; or (E)other matters, the
disclosure of which would constitute a serious threat to national security.
(2) With respect to the information described under paragraph (1), the
Attorney General may prohibit the Inspector General from carryin g out or completing
any audit or investigation , or from issuing any subpoena, after such
Inspector General has decided to initiate, carry out, or complete such audit
or investigation or to issue such subpoena, if the Attorney General the
United determines that such prohibition is necessary to prevent this
disclosure of any information described under par agraph (1) or to prevent
the significant impairment of interests of the States. (3) If the Attorney
General exercises any power under par agraph (1) or (2), the Attorney Gener
al shall n otify the Inspector General in writing stating the reasons for
such exercise. Within 30 days after receipt of any such notice, the Inspector
General shall transmit a copy of such notice to the Committee on Governmental
Affairs and Judiciary of the Senate and Committees on Governmental Operations
and Judiciary of the House of Representatives, and to other appropriate
committees or subcommittees of the Congress.” 5 U.S.C. App. 3, Section 8E.

Appendix C:

Administrative Subpoena Authorities Held by
the Department of Treasury

Accompanying a
Report to Congress on the
Use of Administrative Subpoena Authorities
by Executive Branch Agencies and Entities

Pursuant to Public Law 106-544

Administrative Subpoena Authorities Held by the Department of Treasury

“power to require by
subpoena the attendance and testimony of witnesses and the production of allsuch
documentary evidence relating to any matter under investigation.” 15 U.S.C.
§49, as incor porated by reference in 27 U.S.C. §202(g)

Agency Order of Writ of
Mandamus issued by U.S. District court. See 15 U.S.C.§49.

‘(a)Authority to summon,
etc. For the purpose of ascertaining
the correctness of any return, making a return where none has been made,
determining the liability of an y person for
any internal revenue tax or the liability at law or in equity of any
transferee or fuduciary of any person in respect of any internal revenue tax,
or collecting any such liability, the Secretary is authorized–(1) To examine
any books, paper s, records, or other data which may be relevant or material
to such inquiry; (2) To summon the person liable for tax or required to
perform the act, or any officer or of the internal revenue laws.” employee of
such person, or any person having possession, custody, or care of books of
account containing entries relating to the business of the person liable for
tax or required to perform the act, or any other person the Secretary may
deem proper, to appear before the Secretary at a time and place named in the summons
and produce such books, papers,
records, or other data and to give such testimony, under oath, as may be
relevant or material to such inquiry; and (3) to take such testimony of the
person concerned, under oath, as may be relevant or material to such inquiry.
(b) Purpose may include inquiry into offense. The purposes for which the
Secretary may take any action described in paragraph (1),(2), or (3) of
subsection(a) include the purpose of inquiring into any offense connected
with the admin istration or enforcement of the internal revenue laws.”

(a) In general. Whenever an y
person summoned under 26 U.S.C. 7602 neglects or refuses to obey such
summons, or to produce books, papers, records, or other data, or to
give testimony, as required, application may be made to the judge of the
district court or to a U.S. magistrate for the district within which the
person so summoned resides or is found for an attachment against him as for a
contempt.(b) Persons who may apply for an attachment. Appropriate ATF
officers are auth orized to apply for an attachment as provided in paragraph
(a) of this section. The authority to apply for an attachment for the
enforcement of summons ma y not be redelegated. 27 C.F.R. § 70.24

(c) Notice of contact of
third parties. (1) General notice. An officer or employee of the Internal
Revenue Service may not contact any person other than the taxpayer with
respect to the determination or collection of the tax liability of such
taxpayer without providing reasonable notice in advance to the taxpayer that
contacts with persons other than the taxpayer may be made. (2) Notice of specific contacts. The Secretary shall periodically provide to
a taxpayer a record of persons contacted during such per iod by the Secretary
with respect to the determination or collection of the tax liability of such
taxpayer. Such record shall also be provided upon request of the
taxpayer. (3)Exceptions. This subsecti on shall n ot apply. (A) to
any contact which the taxpayer has uthorized; (B) if the Secretary determines
for good cause shown that such notice would jeopardize col
lection of any tax or such notice may involve reprisal against any peson; or
(C) with respect to any pending criminal investigation. 26 U.S.C. §7602(c)
and (a) When the Bureau summons the records of persons defined by 26 U.S.C.
7609(a)(3) as “third party recordkeepers”,the person about whom information
is being gath ered must be notified in advance, except when: (1) The summons
is served on the person about whom information is being gathered, or any
officer or employee of such person, or (2) The summons is served to determine
wheth er or not records of the business transactions or affairs of an
identified person have been made or kept, or (3) The summons does not identify
the person with respect to whose liability the summons is
issued (a “John Doe” summons issued under the provisions of 26 U.S.C.
7609(f)), or (4) The appropriate ATF officer petitions, and the court
determines, on the basis of the facts and circumstances reasonable cause to
believe the giving of notice may lead to attempts to conceal, destroy, or
alter records relevant to the examination, to prevent the communication of
information from other persons through intimidation, bribery, or collusion,
or to flee to avoid prosecution, testifying or production of records. (b)
Within 3 days of th e day on which the summons was served, the notice
required by paragraph (a) of this section a summons as to which notice is
require under paragraph (a) of this section shall be served upon the per son
entitled to notice, or mailed by certified or
registered mail to the last known address of such person, or, in the absence
of a last known address, left with the person summon3d. No examination of any
records required to be produced under a summons as to which notice is
required under par agraph (a) of this section may be made: (1) Before the
close of the 23rd day after the day notice with respect to the
summons is given in the manner provided in this paragraph, or (2) Where a
proceeding under par agraph (c) of this section was begun within the 20-day
period referred to in that paragraph and the requirements of paragraph (c) of
this section have been met, expect in accordance with an order of the court
having jurisdiction of such proceeding or with the consen t of the person beginning the proceeding to
quash. (c) If the person about whom information is being gathered has been
given notice, that person has the right to institute, until and including the
20th
day following the day such notice was served on or mailed, by certified or
registered mail, to such notified person, a proceeding to quash the
summons. During the time th e validity
of the summons is being litigated, the statutes of limitation are suspended
under 26 U.S.C. 7609(e). Title 26
U.S.C. 7609 does not restrict the authority under 26 U.S.C. 7602 (or under
any other provision of law) to examine records and witnesses without serving a
summons and without giving notice of an examination.” 27 C.F.R. § 70.25

Relevance or materiality to
an inquiry into the tax liability of any person.

“power to require by subpoena the attendance and
testimony of witnesses and the production of all suchdocumentary evidence
relating to any matter under investigation.” 15 U.S.C. § 49, as
incorporated by reference in 26 U.S.C. § 5274

Agency Order of Writ of Mandamus issued by U.s.
District court. See 15 U.S.C. §49.

None

Relevance to any matter under investigation

Treasury Department (Office of Comptroller of the
Currency):

12 U.S.C. §1818(n)

The agency or any designated
representative shall have the power to issue, revoke, quash or modify
subpoenas and subpoenas duces tecum

The agency or any party to
any proceeding under 12 USC 1818 may apply to the US Dist. Ct. where the
witness resides or carries on business for enforcement of the Subpoena

Right to Financial Privacy
Act 12 USC 3401 et seq.

Same as stan dard set forth
in US v. Morton Salt, 388 U.S. 632 (1950).

Treasury Department (Office of Comptroller of the
Currency):

12 U.S.C. §481

Gives examiners the authority
to administer oaths and access documents during an examination.

None

Any institution supervised by
the OCC

Treasury Department (Office of Comptroller of the
Currency):*

12 CFR 19.34 Administrative
Hearing Subpoenas

Upon application of a party
the ALJ may issue a subpoena or subpoena duces tecum requiring the attendance
of a witness at the hearing or the production of documentary or physical evidence at the hearing

The subpoenaing party or any
aggrieved party may seek enforcement pursuant to 12 CFR 19.26(c) which
provides for application to the appropriate US Dist. Ct. for an order requiring compliance

Right to Financial Privacy
Act 12 USC 3401 et seq.

A party must make a showing
of general relevance and reasonableness of scope of the testimony or other
evidence sought

Treasury Department (Office of Comptroller of the
Currency):

12 CFR 19.170 and 19.171
Administrative Discovery Depositions

A party may take the
deposition of an expert, or of a person, including another party, who has
direct knowledge of matters that are non-privileged, relevant, and material
to the proceeding and where there is a need for the deposition

Enforcement shall be in
accordance with the procedures set forth in 12 CFR 19,27(d) which provides
for applicati on to the US Dist. Ct. for an order requiring compliance

A party desiring to take a
deposition shall give reasonable notice in writing to the deponent and to
every other party to the proceeding, stating the time and place for taking th
e deposition and the name and addr ess of the person to be deposed.

Treasury Department (Office of Comptroller of the
Currency)*:

12 CFR 19.26 Administrative
Document Subpoenas to Non-Parties

Any party may apply to the
Administrative Law Judge for the issuance of a document subpoena to an y
person who is not a party to the proceeding

Apply to the appropriate US
Dist. Ct. for an order requiring compliance

Right to Financial Privacy
Act 12 USC 3401 et seq.

The application to the ALJ
must contain a proposed subpoena and a brief statement showing the general
relevance and reasonableness of the scope of documents sought

A party desiring to preserve
the testimony of a witness who will be unavailable for hearing may apply to
the ALJ for issuance of a subpoena including a
subpoena duces tecum

Apply to the appropriate US
Dist. Ct. for an order requiring compliance with the portions of the subpoena
that the ALJ has ordered enforced

A party desiring to take a
deposition shall give reasonable notice in writing to the deponent and to
every other party to the proceeding, stating the time
and place for taking th e deposition and the name and addr ess of
the person to be deposed.

The ALJ may issue a
deposition subpoena upon a showing that: (1) th e witness will be unavailable
to attend or may be prevented from attending the hearing
because of age, sickness or infirmity or will otherwise be
unavailable; (2) the testimony is reasonably expected to be material; and (3)
taking th e deposition will not result in any undue burden to any other party
and will not cause undue delay of the proceeding

Third Party summons: Requires
that the person to whom the records pertain has an opportunity to stay
compliance with the summons by giving notice in writing to the person
summoned not to comply and mailing by registered or certified mail. Notice need not be given if summons issued
to determine existence of records if a Court order is obtained stating that
notice may lead to an attempt to conceal, destroy or alter records. Right to
Financial Privacy Act, 12 U.S.C. §3401 et seq.

Special-Agent-In-Charge is
responsible for any such ongoing investigation and will determine the
propriety of the ser vice of Customs Summons. Any exceptions to this
determination will be coordinated by the Assistant Commissioner
(Investigations) and any other relevant Assistant Commissioners in
consultation with Chief Counsel.

Treasury Department (Customs):

Controlled Substances Enfor
cement, P.L. No. 91-513, 21 U.S.C. §967

Authorizes the Secretary of
the Treasury to subpoena witnesses and records relevant to the enforcement of
18 U.S.C. §545 (smuggling), with respect to controlled substances (as defined
in 21 U.S.C. §802)

Controlled Substances
Enforcement Subpoena, enforceable in Court

Right to Financial Privacy
Act, 12 U.S.C. §3401 et seq.

Must be signed by one of the
following: Assistant Commissioner (Investigations), Deputy Assistant
Commissioner (Investigations), Director, Strategic Investigations Division
Customs Attaches, Senior Customs Representatives, Special-Agents-In-Charge,
Resident-Agents-In-Charge. If company or individual refuses to comply, Chief
Counsel should be contacted. Can be redelegated by Special-Agency-In-Charge
or the Resident-Agency-In-Charge.

Inherent in IEEPA is Customs
ability to demand any records relating to a possible violation of the
statute. “In any case in which a report by a person could be required under
this paragraph, the President may require the production of any books of account, records, contracts,
letters, memoranda, or other paper s, in the custom or control of such
person.” 50 U.S.C. § 1702(a)(2). Courts have ruled that “the requirement that
one engaged in handling commodities under govern ment regul ation by required
to keep records would be rendered futile and nugatory if there was no right
of inspector of such records by the proper government representatives.”
Wilson v. Untied States, 221 U.S. 361(1911).

Summons, enforceable in Court

Right to Financial Privacy
Act, 12 U.S.C. § 3401 et seq.

Must be signed by one of the
following: Assistant commissioner (Investigations), Deputy Assistant
commissioner (Investigations),Direct or, Strategic Investigations Division
Customs Attaches, Senior Customs Representatives,
Special-Agents-In-Charge, Resident-Agents-In-Charge. If company or individual
refuses to comply, Chief Counsel should be contacted. Cann ot be redelegated.

For an y investigation for
the purpose of civil enforcement of violations of the Currency and Foreign
Transactions Reporting Act, U.S.C.§§5311-24, 12 U.S.C. §1829b, 12 U.S.C.
§1951et seq., or section 411 of the National Housing Act: 1) Examine any
books, papers, r ecords or other data of domestic financial
institutions relevant to the recordkeeping and reporting requirements of 31
U.S.C. §§5311 et seq.: 2) summon a financial institution, an officer or
employee of a financial institution, or any person having possession,
custody, or care of the reports and records to give testimony under oath.

Summons of Financial
Institutions and Their Officers, enforceable in Court

Any financial institution
that makes a disclosure of any possible violation of law or regulation or a
disclosure pursuant to this subsection or any other authority, shall not be
liable to any person under any law or regulation for disclosure or for
failure to notify of such disclosure. Unless auth
orized by Secretary or delegate in writin g, information obtained from this
summons authority shall not be disclosed Right to Financial Privacy Act, 12
U.S.C. §3401 et seq.

Arms Expor t Control Act,
P.L. No. 90-629, 22 U.S.C. §2778 (Statute states that Customs shall have same
authority as stated in 50 U.S.C. §2411(a)(c) (through the Export
Administration Regulations [62 Fed. Reg. 12714, March 25, 1996) (EAR)
codified at 15 C.F.R. Parts 730­774, which have been continued in effect
after expiration of the promulgating statutory authority, (Export
Administration Act, 50 U.S.C. §2401 et seq. (EAA), by Executive Order of the President. See Notice of Continuation of Executive Order No. 12924, August 212, 2001 66 Fed. Reg. 44025)).

Customs may obtain
information and make such inspector of the books, records, and other writings
premises, or property related to and AECA violation.

Summons, enforceable in Court

Right to Financial Privacy
Act, 12 U.S.C. §3401 et seq.

Must be signed by one of the
following: Assistant Commissioner (Investigations), Deputy Assistant
Commissioner (Investigations), Director, Strategic Investigations Division
Customs Attaches, Senior Customs Representatives, Special Agents-In-Charge,
Resident-Agents-In-Charge. If company or individual refuses to comply, Chief
Counsel should be contacted. Cann ot
be redelegarted.

Treasury Department (Office of Foreign Asset Control
[OFAC]):

Trading with the Enemy Act
(TWEA) 50 U.S.C. app §1 et seq

Investigate any transactions
in which a foreign person or state subject to economic sanctions has an
interest

Presumably U.S. District
Court contempt proceedings (none have been judicially enforced in recent
history)

None

None

Treasury Department (Office of Foreign Asset Control
[OFAC]):

International Emergency
Economic Powers Act 50 U.S.C. § 1601 et seq.

Investigate any transactions
in which a foreign personor state subject to economic sanctions has an
interest

Presumably U.S. District
Court contempt proceedings (none have been judicially enforced in recent
history)

None

None

Treasury Department (Financial Crimes Enforcement
Network[FinCen]):

31 U.S.C. §5318 (the Bank
Secrecy Act), and 31 CFR §§103.71­103.77.

Section 6(a)(4) of the
Inspector General Act of 1978, The Secretary of the Treasury may summon a
financial institution, an officer or employee of a financial
institution (including a former or employee of a financial
institution officer of employee), or any person having possession, custody, or care
of the reports and records in connection with investigations for the purpose
of civil enforcement investigations of the Bank Secrecy Act or any regulation
thereunder. NOTE: This authority has been delegated by regulation to, among
other agencies, the Office of Financial Enforcement, an office department
that no longer exists within the Treasury Department. The functions of this
office have been subsumed by the Financial Crimes Enforcement Network
(“FinCEN”). While FinCEN has the authority to issue summonses, it does n ot
do so. The Internal Revenue Service
issues summonses, with FinCEN approval, when it needs information in
connection with a Title 31 Bank Secrecy Act examination of certain
financial in stitutions.

The Attorney General may
request an order from a federal district court to comply. Failure to comply
with the or der may be punishable by contempt. No notification requirements.

Summons must be issued for
the purpose of civil enforcement invest igations of violations of the Bank
Secrecy Act or regulation thereunder. N/A

“production of all
information, documents, reports, answers, records, accounts, papers, and
other data and documentary evidence necessary in the performance of the
functions assigned by [the IG Act]...procedures other than subpoenas shall be
used by the Inspector General to obtain documents and information from
Federal agencies.

“in the case of contumacy or
refusal to obey, shall be enforceable by order of any appropr iate United
States district court”

Right to Financial Privacy
Act, 12 U.S.C. Section 3401 et seq.

Decision to issue IG subpoena
is reviewed by auditor’s or investigator’s supervisors, by IG Counsel, and by
the IG. Alternative means to obtain information are tried first, and scope of
subpoena is made as narrow as possible, consistent with case needs.

Authority to summons books,
records or other data, and to obtain testimony th at may be relevant or
material to the investi gation for the purpose of ascertaining the
correctness of a tax return, making a tax return, determining the liability
of an y person for a tax, or collecting a tax liability.

Section 3486 (a)(1)(A)(ii)
authorizes the Secretary of Treasury to issue an administrative subpoena if
the Director of the Secret Service determines that a threat against a Secret
Service protectee is imminent.

Subsection (9)(c) provides
for DOJ enforcement by requesting an order requiring a subpoenaed person or
entity to appear. Failure to appear may result in a contempt order.

Subsection (a)(5) permits th
e recipient of an admin istrative subpoena to seek to modify th e scope of
the admin istrative demand, or modify any a court nondisclosure order
acquired by the government.

Determination of imminent
threat against a Secret Service protectee or conduct constituting an offense
enumerated under 18 USC 871 (Threat Investigations Involving the President
and Successors to the Presidency) and 18 USC 879 Threat Investigations
Involving former Presidents and other Secret Service Protectees).

OTS’s administrative
subpoenas are enforced through a civil action brought by OTS in United States
District Court. See e.g., 12 U.S.C. 1818(n).

All OT S investigative
proceedings and formal examination are private and the record of such
proceedings, including subpoenas issued by OTS, are confidential. See 12 CFR
512.3. Further, the provisions of the Right to Financial Privacy
Act, 12 U.S.C. §3410 et seq., apply to OTS administrative subpoenas. There is
no requirement that OTS provide notification to the subject of a subpoena
prior to the issuance of the subpoena.

OTS administrative subpoenas
are issued incident to invest igative proceedings and formal examinations.
Accordingly, their issuance must be in compliance with lawful authority, related to the subject of the
investigation or formal examination and intended to obtain information that
is relevant and material to the investigation or examination.

5 The Consumer Product Safety Commission, for instance, may delegate any of its functions except the subpoena power of 15 U.S.C. §2076(b)(3), see §2076(b)(9), to any officer or employee of the Commission.

7See, e.g., 11 C.F.R. § 111.12 (requiring that Federal Election Commission members authorize the Chairman or Vice Chairman of the Commission to issue specific subpoenas, whether subpoenas duces tecum or those requiring); 16 C.F.R. §2.7(d) (stating that Federal Trade Commission or one of its members may issue a subpoena upon a resolution by the Commission).

8 See the following cases for the proposition that the government need only show that the subpoena was issued for a lawfully authorized purpose and sought information relevant to the agency's inquiry: United States v. LaSalle Nat'l Bank, 437 U.S. 298, 313 (1978); United States v. Powell, 379 U.S. 48, 57 (1964); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946).

10 While Powell involved an IRS subpoena, a subsequent case clarified that the analysis applied in Powell is relevant to all administrative subpoena authorities. See Securities and Exchange Com’n. v. Jerry T. O’Brien, Inc., 467 U.S. 735, 741-42 (1984).

11 379 U.S. 48 (1964). Some courts have excluded the last two Powell factors, holding that later decisions of the Supreme Court sometimes exclude
such requirements and that adhering strictly to all four factors may
unacceptably restrict agency action. See, e.g.,
United States v. Bell, 564 F.2d 953, 959 (Temp. Emer. Ct. App. 1977) (stating
that the last two requirements are too restrictive); United States v. Security
State Bank & Trust, 473 F.2d 638, 641 (5th Cir. 1973) (stating that the
governmental entity needs only the two primary requirements). Other courts,
however, have applied less deferential scrutiny in analyzing whether an agency
has used its subpoena authority appropriately. See,
e.g., Sunshine Gas Co. v. United States Department
of Energy, 524 F.Supp. 834, 838 (N.D. Tex. 1981) (stating that “the agency's
order should only be affirmed if a rational basis exists, but such must be supplied by the agency, not the court”).

17 United
States v. Hunton & Williams, 952 F. Supp. 843, 854 (3d Cir. 1995). The Third Circuit in this instance noted that
the “reasonableness” inquiry in such cases does not correspond with, and is
more deferential than, the Administrative Procedures Act “arbitrary and
capricious” standard of review for agency action. Id.

20 United States v. Security State Bank and Trust, 473 F.2d 638, 641 (5th Cir. 1973). The Supreme Court, however, has not specifically issued a ruling as to whether the constraints of due process preclude federal agencies from possessing the power to enforce their own subpoenas. Federal courts have generally held that due process does preclude federal agencies from enforcing such subpoenas, however. See Shasta Minerals & Chem. Co. v. SEC, 328 F.2d 285, 286 (10th Cir. 1964). The Court has stated in Interstate Commerce Commission v. Brimson, 154 U.S. 447, 484 (1894), that “the power to impose fine or imprisonment in order to compel the performance of a legal duty imposed by the United States can only be exerted, under the law of the land, by a competent judicial tribunal having jurisdiction in the premises,” Id. at 484; however, as Congress has not tested the outer limits of Interstate Commerce Commission v. Brimson by conferring direct administrative subpoena enforcement authority on a federal agency, the Court has not had occasion to specifically address the constitutionality of a conferral of such enforcement authority.

21 Consider, for instance, the Secretary of Labor, who is authorized
to petition directly for enforcement of an ERISA Title I subpoena. See, e.g., Dole
v. Milonas, 889 F.2d 885, 888 (9th Cir. 1989) (noting that the FTC Act provisions codified at 15 U.S.C. § 49 are
incorporated into ERISA at 29 U.S.C. § 1134(c), thereby authorizing the
Secretary of Labor to petition for enforcement of an ERISA Title I subpoena in
district court). The Federal Election Commission is similarly authorized under
2 U.S.C. §437d(b) to petition a district court directly for enforcement of
certain administrative subpoenas (authorizing the Federal Election Commission
to petition the appropriate U.S. district court to issue an order requiring
compliance with subpoena request authorized by 2 U.S.C. §437d(a)(1)-(4) and to
punish any failure to obey such order).

23See, e.g., Foreign Shipping Practices Act, 46 App. 46 U.S.C. 1710a (authority to make information requests, but no enforcement authority, judicial or otherwise, is mentioned in the statute); See also Federal Maritime Commission’s related submission and recommendation in Appendix A.

24See UNITED STATES ATTORNEYS MANUAL (USAM), 4-6.210C. This section of the USAM states that “[m]ost routine subpoena enforcement actions are handled by the USAOs and are authorized by the Director in charge of Area 1.” The USAM goes on to state that:

[a] Branch attorney
will review the referral and proposed pleadings, and then prepare a memorandum
from the assistant director to the director, recommending whether the suit
should be filed. If the subpoena
enforcement action is approved by the director, the Branch attorney will write
the agency and the United States Attorney, stating whether the suit has been
authorized or not, and if so, that it is delegated to the United States
Attorney. In cases in which suit is
authorized, a referral acknowledgment form will also be sent to the United States
Attorney, as well as a copy of papers received from the agency.

28 United States v. Powell, 379 U.S. 48, 58 (1964). Federal courts have further expounded on the concept of agency “bad faith,” stating that “bad faith” may be found in “circumstances involving the harassment of the recipient of a subpoena” or a “conscious attempt by the agency to pressure the recipient to settle a collateral dispute.” United States v. Markwood, 48 F.3d 969, 978 (6th Cir. 1995).

30 Cobbledick v. United States, 309 U.S. 323, 330 (1940) (recognizing the immediate reviewable nature of a district court enforcement order). In contrast, grand jury enforcement orders are not appealable immediately as this would stall further court proceedings. No further proceedings in the court are necessary, however, after a court orders compliance with an administrative subpoena. Id. at 329-30.

31See 42
U.S.C. §9604(e) (authorizing the court to assess civil penalties of up to
$25,000 for each day of continued noncompliance with subpoena issued under
CERCLA authority); 15 U.S.C. §50 (FTC statute, incorporated by reference into
several other agencies’ subpoena authorities (See, e.g., 33 U.S.C. §944, Department of Labor authority) authorizing punishment for
noncompliance by “a fine of not less than $1,000 nor more then $5,000, or by
imprisonment for not more than one year, or by both such fine and
imprisonment”).

32See, e.g., Department of Energy authority granted in 15 U.S.C. §772(e), with subsection
(i), incorporating by reference §797(a), (b)(1) and (2) (including violation of
subpoena requirement among list of various other violations and prescribing
disparate civil penalties based on “willful” or non-willful failure to comply);
Department of Interior, 43 U.S.C. §§102-106 (stating that wilful refusal to
comply with subpoena request in public lands cases may be punished as a
misdemeanor); Federal Deposit Insurance Corporation, Federal Deposit Insurance
Act (FDI Act), 12 U.S.C. §1818(n) (stating that any person who willfully fails
or refuses to comply with an FDIC subpoena may be subject to contempt
proceedings in federal district court and “shall be guilty of a misdemeanor
and, upon conviction, shall be subject to a fine of not more than $1,000 or to
imprisonment for a term of not more than one year or both”); Internal Revenue Service
authority granted in 26 U.S.C. §6420(e)(2), 6421(g)(2), 6427(j)(2), 7602, 7603,
and 7604(b) (stating that a person failing to comply with a subpoena request
under these sections shall “upon conviction thereof, be fined not more than
$1,000, or imprisoned not more than 1 year, or both,
together with costs of prosecution,” 26 U.S.C. §7210).

33See 26 U.S.C. §7604 (authorizing the Secretary to request a hearing in front of a
U.S. district court judge or Commissioner for contempt proceedings based on
noncompliance with an I.R.S. request for information). This statute provides
that the judge or commissioner shall, “upon such hearing. . . have power to
make such order as he shall deem proper, not inconsistent with the law for the
punishment of contempts, to enforce obedience to the requirements of the
summons and to punish such person for his default or disobedience.” Id.

34 Contempt may be either civil or criminal in nature. A federal court is authorized under 18 U.S.C.
§401 to initiate a prosecution for contempt. See id. (stating that “[a] court of the United States shall have power to punish by
fine or imprisonment, at its discretion, such contempt of its authority, and
none other, as-- . . . (3) Disobedience or resistance to its lawful writ,
process, order, rule, decree, or command” ).
Under current law, a person found guilty of criminal contempt may be
subject to a fine not to exceed the sum of $1,000, imprisonment not exceeding a
term of six months, or both. 18 U.S.C.
§402. In proceedings for criminal
contempt where the penalty authorized by statute makes this contempt something
more than a petty offense, the defendant is entitled to the right to a trial by
jury under Article III, Section 2, and under the Sixth Amendment of the
Constitution. See Propriety of Imprisonment under 18 U.S.C. §401(3) for Contempt of Court
Order Requiring Compliance with Statute not Authorizing Imprisonment for its
Violation, 41 A.L.R. FED.
900 (2000). In addition, federal courts have also held that a defendant is
entitled to the assistance of counsel in any proceeding for criminal contempt. See Holt
v Virginia, 381 U.S.C. 131 (1965).

35 Section
1724 of the RSFA authorizes certain officials in the U.S. Department of
Interior to issue administrative subpoenas.
30 U.S.C. §1724(d)(2)(B). In a
separate provision, RSFA amends the FOGRMA. FOGRMA provides its own compulsory
authorities and authorizes enforcement of those authorities. 30 U.S.C. §1717. The Department of Interior noted in its
submission to the Office of Legal Policy at the Department of Justice that the
issue as to whether the FOGRMA enforcement provisions apply to situations of
noncompliance with RSFA subpoenas has not been litigated. See Appendix A,
U.S. Department of Interior entry.

46 Each of these actions meant to peripherally encourage compliance with a subpoena request are, however, subject to the disapproval of the President for “reasons of the national defense or the foreign policy of the United States.” See 46 App. U.S.C. §1712(b)(7).

47See United States v. Security State Bank and Trust, 473 F.2d 638, 641 (5th Cir. 1973) (stating that “[b]ifurcation of the power, on the one hand of the agency to issue subpoenas and on the other hand of the courts to enforce them, is an inherent protection against abuse of subpoena power”).

50See Appendices A, B, C infra. See also In re Subpoena Duces Tecum, 228 F.3d at 348; United States v. Bell, 564 F.2d 953, 959 (Temp. Emer. Ct. App. 1977) (stating that “[b]ifurcation of the power, on the one hand of the agency to issue subpoenas and on the other hand of the courts to enforce them, is an inherent protection against abuse of subpoena power”).

54See also Securities and Exchange Comm’n v. Wheeling-Pittsburgh Steel Corp., 648 F.2d
118, 124 at n. 9 (3d Cir. 1981) (stating that “‘[b]ad faith’" connotes a
conscious decision by an agency to pursue a groundless allegation without hope
of proving that allegation” while “abusing the court's process” connotes vigorous pursuance “of a charge because of
the influence of a powerful third party without consciously and objectively
evaluating the charge”).

60See, e.g., 7 U.S.C. §2(h)(5)(C)(i) (providing
administrative subpoena authority to the Commodity Futures Trading Commission
and requiring that the recipient of a subpoena must “promptly notify the
foreign person of, and transmit to the foreign person, the subpoena in a manner
reasonable under the circumstances, or as specified by the CFTC”).

61 Subsection
(b) sets forth twelve circumstances under which records concerning an
individual can be disclosed without the individual's prior written consent. The
law enforcement exception states that

[n]o agency shall
disclose any record which is contained in a system of records by any means of
communication to any person, or to another agency, except pursuant to a written
request by, or with the prior written consent of, the individual to whom the record
pertains, unless disclosure of the record would be to another agency . . . for
a civil or criminal law enforcement activity if the activity is authorized by
law, and if the head of the agency or instrumentality has made a written
request to the agency which maintains the record specifying the particular
portion desired and the law enforcement activity for which the record is
sought.

5 U.S.C. §552a(b)(7).

62Law
enforcement records exempted from the disclosure requirements of FOIA include
records or information that:

(A) could reasonably
be expected to interfere with enforcement proceedings, (B) would deprive a
person of a right to a fair trial or an impartial adjudication, (C) could
reasonably be expected to constitute an unwarranted invasion of personal
privacy, (D) could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or authority
or any private institution which furnished information on a confidential basis,
and, in the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation or by an agency
conducting a lawful national security intelligence investigation, information furnished
by a confidential source, (E) would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for
law enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or (F) could
reasonably be expected to endanger the life or physical safety of any
individual.

5 U.S.C. §552(b)(7).

63 Consider, for example, 17 C.F.R. Part 145 (2002) (providing
guidelines as to the process an individual must follow in requesting that the
Commodity Futures Trading Commission keep information submitted by the
individual confidential, nothwithstanding the general principles of disclosure
promoted under FOIA).

64See H.R. REP. NO.
95-1383, at 33, reprinted in 1978 U.S.C.C.A.N.
9273, 9305. See also the discussion regarding the legislative
history surrounding RFPA in U.S. on Behalf of Agency for Int’l. Development v. First
Nat’l Bank of Maryland, 866 F.Supp. 884 (D.Md. 1994).

65An
agency issuing an administrative subpoena to a financial institution must also
notify the customer whose records it seeks. See 12 U.S.C. § 3405(2). RFPA notice to the consumer must include: (1)
a copy of the subpoena, including a description of the information being
requested; (2) the purpose of the subpoena, (3) the customer’s right to file a
motion to quash the subpoena. Id.
Together with this notice, the customer must also be provided blank customer
challenge motion and sworn statement forms. Id.

66 A presiding judge or magistrate judge may so order if: (1) the investigation
being conducted is within the lawful jurisdiction of the Government authority
seeking the financial records, (2) there is reason to believe that the records
being sought are relevant to a legitimate law enforcement inquiry, and (3) there is reason to believe that such
notice will result in: (a) endangering the life or physical safety of any person,
(b) flight from prosecution,

(c)
destruction of or tampering with evidence, (d) intimidation of potential
witnesses, or (e) otherwise seriously jeopardizing an investigation or official
proceeding or unduly delaying a trial or ongoing official proceeding to the
same extent as the circumstances previously listed. See 12
U.S.C. §3409.

69 The
Act provides for customer challenges (motion to quash, application to enjoin)
to government access to financial records (see 12 U.S.C. §3410) and also provides for injunctive relief to enforce compliance
with any of its provisions (see 12 U.S.C. §§ 3416, 3418). The
Act provides for the assessment of money damages against any agency or
department or private financial institution obtaining or disclosing financial
records in violation of the Act's provisions, at a statutory minimum amount of
$100 regardless of the volume of records involved. See 12 U.S.C. § 3417(a)(1).
Beyond this statutory minimum, both actual damages sustained by the customer as
the result of a disclosure, as well as discretionary punitive damages where a
violation is found to have been "willful or intentional," are
allowed, together with costs and reasonable attorney fees. See 12 U.S.C. § 3417(a)(2),(3),(4). See also 12
U.S.C. § 3410(a) (discussing time limitations on a party’s ability to seek
injunction of intended government
access).

70 The governmental entity bears the initial burden in a challenge presented during an enforcement action. The government’s initial burden in enforcement actions,
however, is light, only requiring “a prima facie recital of jurisdiction and
statement of the basis for enforcement.”
John W. Bagby, “Administrative Investigations: Preserving a Reasonable
Balance Between Agency Powers and Target Rights,” 23 AM.
BUS. L. J. 319, 324 (1985).

73See, e.g., United States v. Wilson, 571 F. Supp. 1417 (S.D.N.Y. 1983)
(rejecting the challenge under RFPA that records subpoenaed were not
“reasonably described”); Pennington v. Donovan,
574 F. Supp. 708 (S.D. Tex. 1983) (rejecting a challenge under RFPA that
the agency did not believe that the record subpoenaed were “relevant to a
legitimate law enforcement inquiry”).

74 The
statute further states that “[i]n assessing good cause the court shall weigh
the public interest and the need for disclosure against the injury to the
patient, to the physician-patient relationship, and to the treatment services.”
42 U.S.C. §290dd-2(b)(2)(C).

80 An oversight agency
is defined in the regulation to include an agency authorized by law to oversee
the health care system (whether public or private) or government programs in
which health information is necessary to determine eligibility or compliance, or
to enforce civil rights laws for which health information is relevant." 45 C.F.R.
§ 164.501.

91Federal
courts have upheld this principle in various circumstances. See, e.g., United
States v. Art Metal-U.S.A., Inc., 484 F.Supp. 884, 886- 87 (D.N.J. 1980); See also U.S. v. Aero-Mayflower Transit Co., 646 F.Supp. 1467, 1471 (D.D.C. 1986)
(stating that “such agency communication with prosecutors is precisely the kind
of cooperation that an efficient government should encourage”).

92While
the administrative subpoena authority held by
Inspectors General is generally not limited by senior officials in a
parent agency, certain agency heads are authorized to intervene in the exercise
of the authority where issues of national security or other sensitive interests
are involved. See 5
U.S.C. App. 3 §8(b) (Secretary of Defense), 5 U.S.C. App. 3 §8D(a)(1)(Secretary
of Treasury), 5 U.S.C. App. 3 §8E(a)(1) (Attorney General).

93See 5
U.S.C. §4(d); United States v. Aero Mayflower Transit Co., 831 F.2d 1142,
1144-46 (D.C. Cir. 1987). The Court in
this case upheld the use of the administrative subpoena authority even where
the Inspector General of the Department of Defense was in cooperation with the
FBI and the Antitrust Division of the Department of Justice. The court stated that “so long as the
Inspector General's subpoenas seek information relevant to the discharge of his
duties, the exact degree of Justice Department guidance or influence seems
manifestly immaterial." Id. at 1146. In addition, Rule 6e does not preclude United
States Attorneys from conducting joint investigations with an Inspector General
or from using in a grand jury investigation information obtained by an IG
investigation by the Department of Justice, even if the IG serves as a source
of information for the Justice Department investigation. See 72 A.P.R. FLA.
B.J. 34, 37 (1988). See also United
States v. Educational Dev. Network Corp., 884 F.2d 737, 738-40, 741-43 (3d Cir.
1989), cert.
denied, 494 U.S. 1078 (1990). 5 U.S.C. §6(a)(4)
requires that “procedures other than subpoenas shall be used by the Inspector
General to obtain documents and information from federal agencies,” however.

95 Since
the U.S. Supreme Court's decision in Interstate Commerce Commission v.
Brimson, 154 U.S. 447 (1894), federal courts have
generally held that, as a matter of due process, federal agencies cannot be
given the power to enforce their subpoenas. See Shasta Minerals & Chem. Co. v. SEC, 328 F.2d 285, 286 (10th Cir. 1964). The
U.S. Supreme Court has not made a specific ruling on this issue. See 1
KENNETH CULP DAVIS
& RICHARD J. PIERCE,
ADMINISTRATIVE LAW TREATISE
§ 4.2, at 143 (1994)) (noting that "[i]t is hard to know whether the broad
holding [in Brimson]
remains good law because Congress has not tested it”).

98 SEC
v. ESM Gov't Sec., Inc. 645 F.2d 310, 317 (5th Cir. 1981). Th e court in this
case established a three prong test to determine whether an administrative
subpoena was issued in bad faith: (1) whether the agency intentionally or
knowingly misled the subject of the subpoena; (2) whether the subject was
actually misled; and (3) whether the subpoena was the result of improper access
to the party's records. Id. at 317-18.

99See also Pub. L. No. 104-134, Section 509, (h)-(i) (protecting certain information
obtained by the Office of the Inspector General at the Legal Services
Corporation from further disclosure):

(h) Notwithstanding section
1006(b)(3) of the Legal Services Corporation Act (42 U.S.C. 2996e(b)(3)),
financial records, time records, retainer agreements, client trust fund and
eligibility records, and client names, for each recipient shall be made available
to any auditor or monitor of the recipient, including any Federal department or
agency that is auditing or monitoring the activities of the Corporation or of
the recipient, and any independent auditor or monitor receiving Federal funds
to conduct such auditing or monitoring, including any auditor or monitor of the
Corporation, except for reports or records subject to the attorney-client
privilege.
(i) The Legal Services Corporation shall not
disclose any name or document
referred to in subsection (h), except to--
(1) a Federal, State, or
local law enforcement official; or
(2) an official of an appropriate bar
association for the purpose of enabling the official to conduct an
investigation of a rule of professional conduct.

100See, e.g., Appendix A for information regarding the Inspectors General at U.S. Department
of Agriculture (Inspector General Directive, IG-8551 (C2-C5)) and Department of
Energy (Inspector General Directive, IG-916, dated, June 24, 1986.).

101 The Right to Financial Privacy Act (RFPA)
requires Inspectors General to provide, as notice, a copy of an RFPA subpoena
to a customer whose records are being requested. See 12 U.S.C. §
3405. The RFPA prohibits a financial institution from releasing financial records
without certification of compliance with the requirements of RFPA. See 12 U.S.C. § 3403(b).

102Id. at § 3405. A copy of the subpoena must be served on the customer, and the
customer must be given the opportunity to move to quash the subpoena. Id. Under the RFPA, subsequent to 1986 amendment,
a financial institution or an officer or employee thereof is not precluded from
notifying a government authority that they

possess
information that may be relevant to a violation of any statute or regulation. Id. at § 3403(c).

103See, e.g., Appendix A for information regarding Inspectors General at the U.S. Department
of Agriculture (Inspector General Directive, IG-8551 (C2-C5)) and Department of
Energy (Inspector General Directive, IG-916, June 24, 1986).

114Id.
(evaluating §3486(a) health care offense subpoena authority and referring to
standards established in United States v. Powell, 379 U.S. 48,
57-58 (1964)).

115 Order
2486-2001 superceded an earlier order dated April 23, 1997 and issued by former
Attorney General Janet Reno. See United States Attorney’s
Manual, 9-44.200. The new delegation
order ratified all outstanding administrative subpoenas and any actions taken
pursuant to the previous delegation order.

116 These
factors include the factors articulated in United States v. Powell,
379 U.S. 48, 57-58 (1964). In addition, the court must determine that the
subpoena was not issued in “bad faith” or otherwise constituted an “abuse of
the court’s process.” Id.